P L D 1970 Dacca 786 (PLP)

This second appeal arises out of a suit for declaration that the kabala dated 25thFebruary 1967, executed by one Nagen dra and Brojobala in favour of the defendant is null and void and also for khas possession of the suit land by evicting the defendants therefrom. The defendants Nos. 1 and 3 are appellants before me. The plaintiffs' case, in short, is that Nagendra and Brojobala intended to mortgage the suit land with the defendants for Rs. 100 and with that intention they executed the kabala in question without knowing that a sale deed was being executed by them. It is the further case of the plaintiffs that Nagendra was minor at the time of the execution of the said kabala and that he was also a rent receiver within the meaning of the State Acquisi tion and Tenancy Act, 1951 and the transfer in question was hit by section 9 of the said Act and the plaintiffs are entitled to get khas possession. Defendants 1 and 3, who are appellants before me, contested the suit. Their contention is that the kabala in question was a bona fide, valid and effective one and that the defendants have acquired good title to the land in suit in pursuance of the said kabala and as such the plaintiffs were not entitled to any relief whatsoever. The learned Munsiff, 2nd Court, Gaibanda, decreed the suit being other Suit No. 117 of 1953 on 27th May 1959, and declared the plaintiffs' title to the land in suit and directed that they would get khas possession in the same. Thereafter on appeal by the said defendants the learned Additional District Judge, Rangpur, in other Appeal No. 159 of 1959 affirmed the decision of the learned Munsif by his judgment and decree dated 18th January 1961. Being aggrieved by the said decisions of the learned Courts below the defendants 1 and 3 preferred the present second appeal. In this appeal the only point which has been urged by Mr. Abu Hossain Sarkar, the learned Advocate for the appellants, is that the kabala in question was bona fide and legal and was not hit by the provisions of section 9 of the East Bengal State Acquistion and Tenancy Act. In support of his contention Mr. Sarkar has referred to the decision in the case of Sarat Chandra Nath v. Faiz and others (19 D L R 315). In the said case the plaintiff who was a rent receiver at the time of transfer in question filed a suit praying for a declaration that the kabala purported to have been executed by the plaintiff in favour of the defendants was null and void, and the transfer in question was made after general notifications under section 3 of the State Acquisition Act were published and the question that arose in the said case was whether in view of the said facts the plaintiff could ask for a declaration that the document in question was void and therefore did not bind him. In the said case his Lordship Sattar, J., held in the facts and circumstances of the said case that the whole purpose behind enacting section 9 was to prevent actions which might put the Provincial Government at a disadvantage in executing the scheme envisaged by the State Acquisition Act, and the plaintiff in the said case voluntarily executed a document for consideration and after having done that he could not be allowed to turn round and claim advantage of his own fraud on the basis of provisions of section 9(1) of the State Acquisition Act. In this connection I would like to quote section 9(1) of the State Acquisition Act which was as follows: "(1) Notwithstanding anything contained in any other law for the time being in force, on and from the date of publication of a notification under subsection (1) of section 3, no rent receiver specified in such notification shall, except with the previous permission of a prescribed authority, transfer his rights and interests in any estate, taluk or tenure, to which such notification relates, by private sale, gift, will, mortgage, lease or any contract or agreement or transfer any land in his khas possession by any such means." It is found from section 9(l) of the said Act that on and from the date of publication of the notification no rent receiver shall, except with the previous permission of a pres cribed authority, transfer his rights and interests in any estate, taluk or tenure, to which such notification relates, by private sale, gift, will, mortgage lease or any contract or agreement, or transfer any land in his khas possession by any such means and any such transfer made in contravention of the said provision shall be null and void. Admittedly in this case Nagendra was a rent receiver and no permission of the prescribed authority was obtained for making the transfer to the defendants. The general notification came into force on and from 2nd April 1956. Whereas the kabala, Exh. A, was executed on 25th February 1957, and as such the said kabala was apparently hit by the aforesaid provisions of law. In the said context if I now consider the contention of Mr. Sarkar with reference to the aforesaid decision it can be said that in the facts of the instant case the aforesaid decision at the first instance distinguishable because of the fact that in the present case before me both the learned Courts below concur rently found that the kabala in question was not fraudulent and collusive and I have no reason to interfere with the said concurrent findings of facts in second appeal. Moreover, it is well settled principle of law that there cannot be any estoppel against statute. But here with profound respect I may mentioned that unfortunately in the aforesaid decision his Lordship Sattar, J. was not called upon to consider the point as to whether there could be estoppel against the statute in the facts and circumstances of the case as the said point was not at all urged before his Lordship. In this respect reference may be made to the decision in the case of Mian Muhammad Saeed and another v. The Province of West Pakistan and others (P L D 1964 (S C) 572). In the said case it appears that a notified agricultural tribe as defined in the Punjab Alienation of Land. Act, except under certain circumstances which was not relevant in the said case, cannot alienate its agricultural lands under the said Act to one who does not belong to the said tribe, and the appellant in the said case while selling the land to the vendees sold it to persons who did not belong to the notified agricultural tribe, and on that representation the vendee purchased the land and later on the appellant obtained a declaration from the revenue authorities to the effect that they belonged to the notified agricultural tribe, and on that basis they applied to the relevant authority that the land which was sold by them should be returned to them under the provisions of the Punjab Alienation of Land Act. It was argued in the said case that even though the conduct of the appellants were fraudulent therefore they could not get back the properties which they parted with on the principles of estoppel as laid down in section 115 of the Evidence Act, yet as it was urged, they .were not debarred from raising the plea that the transaction in dispute contravened the provisions of the Punjab Land Alienation Act (XIII of 1900), and to that extent, the rule of estoppel could not be invoked against them, as it would defeat the policy of the Act. Estoppel, as it was urged, could not be allowed to prevail against the provisions of a statute. In that context their Lordships of the Supreme Court held in the said case. "The plea of estoppel would be available to bar investiga tion of a question of fact about which a representation had been made so as to induce the other party to change his position to his prejudice and the principle of there being no estoppel against a statute, should only be invoked in such cases, if on the face of it, the contract is shown to be tainted with illegality." In this respect reference may also be made to the decision in the case of Maritime Electric Co., Ltd. v. General Diaries, Ltd. (A I R 1937 P C 114). In the said case their Lordships of the Judicial Committee held to the following effect :‑ "In case of Statute enacted for the benefit of a section of the public, that is, on grounds of public policy, where the statute imposes a duty of a positive kind, not avoidable by the performance of any formality, for the doing of the very act which the party suing seeks to do, it is not open to the opposite‑party to set up estoppel to prevent it. The conclusion must follow from the circumstance that an estoppel is only a rule of evidence which under certain special circum stances can be invoked by a party to an action ; it cannot therefore avail in such a case to release the party suing from an obligation to obey such a statute, nor can it enable the opposite‑party to escape from a statutory obligation of such a kind on his part. It is immaterial whether the obligation is onerous or otherwise to the party suing. The duty of each party is to obey law." In the said case their Lordships of the Judicial Committee further held :‑ "The Court should first of all determine the nature of the obligation imposed by the statute and then consider whether the admission of an estoppel would nullify the statutory provision." I may here also refer to the well known case of Mohori Bibee and another v. Dhurmodas Ghose (30 I A 114). In the said case their Lordships of the Judicial Committee held that section 155 of the Evidence Act as to estoppel does not apply where the untrue statement is relied upon is made to a person who knows the real facts and is not misled by it, and that there can be no estoppel where the truth is known to both parties, and that a false representation made to the person who knows it to be false is not such a fraud as to take away the privilege of infancy with reference to the section 19 of the Contract Act. I may also refer to one more decision in the case of Tarapada Ghose v. Mst. Mariamnessa Bibi (P L D 1968 Dacca 521), wherein his Lordship Murshed, C. J. in the facts and circumstances of the said case where interpretation of section 9 of the East Bengal State Acquisition and Tenancy Act was also involved held :‑ "It is clear that if the provisions of law, as quoted above, are applicable to this case then the transference to plaintiffs of the land, as stated above, would be void in accordance with the terms of the provision of the said Act." The said decision also goes against the contention of Mr. Abu Hossain Sarkar. From what I have stated above I find that both the Courts below rightly declared that the kabala is null and void and passed decrees against the defendants declaring the plaintiffs' title to the land and his right, to get khas possession by evicting the defendants therefrom. In the result the appeal is dismissed and the decrees passed by the Courts below are affirmed. As no one appears on behalf of the respondents I make no order as to costs. Leave under clause 15 of the Letters Patent, as prayed for is granted. A. E. Appeal dismissed.