P L D 1967 Dacca 47 (PLP)

MURSHED, C. J.‑This appeal is by the plaintiffs and it arises out of the following circumstances. Plaintiffs instituted a suit for a declaration that a kabala executed by one Promode Lal and Prodyumna Lal on the 27th of September 1956, was a valid document and also asked for a further declaration that the order made by an Additional Collector of Revenue on the 24th of October, 1957, declaring the said document to be void was itself an illegal and void order. It appears that the aforesaid Promode Lal and Prodyumna Lal sold certain piece of land to the plaintiffs for which the consideration that was settled was a sum of Rs. 4,000 payable in Pakistan. One Kumud Lal, as attorney of the owners, negotiated the transaction. An income‑tax clearance certificate was asked for. The kabala was registered in the district of Sylhet and the plaintiffs were put in possession of the suit‑land. Sometime later defendant No. 2 filed a petition before an Additional Collector of Revenue to declare the kabala to be null and void for having contravened the provisions of section 9 of the East Bengal State Acquisition and Tenancy Act, 1950 (Act XXVIII of 1951). The Additional Collector of Revenue by an order, dated the 24th of October, 1957, declared the kabala to be void. He also passed certain orders which are challenged as having been made without jurisdiction. Hence the suit; Defendant No. 2 contested the suit, and in the written state ment filed by him, he has asserted that Promode Lal was an Indian citizen. He has also contended that the kabala was bad for the aforesaid reasons. The learned Munsif, who tried the suit, dismissed the same on the ground that the kabala was hit by the provisions section 9 of the Fast Bengal State Acquisition and Tenancy Act, 1950, ands furthermore, that it was also hit by the provisions of the Foreign Exchange Regulation Act (Act VII of 1947). On appeal the judgment and decree passed by the learned Munsif were affirmed by the Additional District Judge of Sylhet and the appeal was dismissed. Hence this appeal. At the hearing of this appeal we were taken through the judgments pronounced by the Courts below. It has been argued that the conclusions arrived at by the courts below have no legal basis because, in the first place, they are not supported by evidence and, secondly, because the said courts misdirected themselves on the law applicable to the case. It is evident that there is no evidence whatsoever that either any of the transferees or somebody amongst the transferors was a foreigner. The document was registered in Sylhet. It appears that one of the transferors was a resident outside Pakistan. Furthermore, in the recital of the kabala it has been mentioned that the consideration was received in Pakistan. We shall come back to this when we discuss the point as to whether the document is hit by the provisions of the Foreign Exchange Regulation Act. The first point, on which the courts below have held that the kabala is void is based on the argument that it is hit by the provi sions of section 9 of the East Bengal State Acquisition and Tenancy Act which puts an embargo upon transfer of land by a rent‑receiver. In this connection, the most pertinent question is: Are the transferors rent‑receivers? It transpires that there is no evidence on this point. The contesting defendant did not lead any evidence in this behalf. The consideration, which weighed with the courts below, is the fact that in the document itself the transferors were described as holding part of the land in maliki aright. It was, therefore, held that they must be proprietors and that the pro prietors must necessarily be rent‑receivers. Is that so? Our attention was drawn to the definition clauses of the East Bengal State Acquisition and Tenancy Act, namely, sub sections (22) and (23) of section 2 of the said Act, which define "rent" and "rent‑receiver", respectively. The said subsections are as follows: "(22) `rent' means whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant; (23) `rent‑receiver' means a proprietor or a tenure‑holder, and includes a raiyat, an under‑raiyat or a non‑agricultural tenant whose land has been let out and also the immediate landlord of a person who holds any land free of rent in consideration of some service to be rendered, but does not include a person in respect of such 'of his lands, as has been let out, together with any building standing thereon and neces sary adjuncts thereto, otherwise than in perpetuity." If both the aforesaid subsections are read together, it would be seen that the word "rent-receiver" purports to mean a receiver of rent as defined in subsection (22). It seems also clear that every proprietor or a tenure‑holder is not necessarily a rent‑receiver; in order to be a rent‑receiver, a proprietor or a tenure‑holder must have a land which has been let out and for which he receives rent within the meaning of subsection (22), as quoted above. It seems to us that this is clear from the language of the aforesaid provision. It would be clear from the observations of a Division Bench of this Court in the case of Ayubur Rahman v. Bashir Ali (P L D 1962 Dacca 23) which is a decision in a Letters Patent Appeal, that "talukdar" (who is necessarily a tenure‑holder) is not necessarily a rent -receiver unless he is actually a receiver of rent. We hold that the learned Additional District Judge was right 'in holding that a `malik' means a proprietor. But, we further hold that a malik is not necessarily a rent‑receiver unless he is actually a receiver of rent as mentioned by us above. There fore, it cannot be said that, just because a transferor is a malik in respect of a part of the transferred land, he is a rent‑receiver. The courts below have further come to the conclusion that the transferors of the land were rent‑receivers because they were described as "mirashdars" in respect of the said land. The expression "mirashdar" is a simple word and is derived from an Arabic term, which means the holder of a hereditary right. In the context of the kabala it means that the transferors claim to hold the land as a heritable tenancy and no more. It would, therefore, be wrong to conclude that just because the transferors have been described as tenure‑holders, they must necessarily be rest‑receivers without any evidence to that effect. On the contrary, the evidence in this case clearly establishes that the transferors had no tenant under them and that they did not possess any tenanted land in Pakistan. In the fact of the aforesaid evidence and in the absence of any evidence to the contrary, it cannot be held that the transferors were rent‑receivers. We, therefore, find that the kabala is not hit by the provisions of section 9 of the East Bengal State Acquisition and Tenancy Act. The second point, which found favour with the courts below, is that the document is hit by the Foreign Exchange Regulation Act. We fail to see how the aforesaid provisions are attracted to this case. We have already seen that the document was registered in Sylhet and that the transferors and transferees were residents in Pakistan, except in the case of one transferor who was described as resident at a place in India. This does not mean that a person who does not reside in Pakistan is necessarily a foreigner. In any event, there is no evidence in this case which raises the question as to whether a contravention of the Foreign Exchange Regulation Act is involved. In the document itself it has been stated that the consideration was paid in Pakistan in cash. In any event, we fail to see in the record of this case any evidence or material upon which the Foreign Exchange Regulation Act could be attracted. We think that the courts below had embarked upon a fruitless enquiry to find that the document was void. We hold that the kabala could not be held to be void for contravention of the Foreign Exchange Regulation Act. We are not, however, deciding the question as to whether a mere contravention of the Foreign Exchange Regulation Act would render the document void; all that we are saying is that no .such consideration arises in this case. We would also like to observe that it has been contended on behalf of the defendant‑respondent that the word "mirashdar" in Sylhet includes a rent‑receiver. This does not necessarily mean that the transferors were‑ rent‑receivers when there is no evidence to that effect. Lastly, we would like to observe that the Additional Collector of Revenue had no jurisdiction to pass the impugned order which he made on the 24th of October 1957. He does not possess the power and jurisdiction to declare a kabala to be void. He is also not authorised to adjudicate upon the vires of the said document. Even if we had held, and we do not do so, that the document was void, we would have no hesitation to declare that the order passed by the Additional Collector of Revenue was without jurisdiction. However we have found, affirmatively, that the kabala could not be described as void. The evidence in this case proves that it is a valid document. For reasons stated above, we allow this appeal and set aside the judgments and decrees passed by both the courts below. We decree the suit and declare that the kabala in question was valid and that the order passed, by the Additional Collector of Revenue on the 24th of October, 1957, declaring the said document to be void was itself null and void. We, however, make no order as to costs of this appeal. M. R. KHAN, J.‑I agree. K. B. A. Appeal accepted.