XII. when distraint as are not paid on demand. The distrainer, after giving LECTURE the defaulter's surety notice, may distrain either the defaulter's or the surety's property, or both; but before distraining on the surety's property there must be a demand from the defaulter. Various other restrictions are abolished, and provision is made for the case of a defaulter forcibly or clandestinely removing property attached. It is also provided that no claim to the crops on the ground, or to any gathered product of the ground attached in the possession of the defaulter, shall bar the prior claim of rent; such produce being mortgaged to the proprietor, who is entitled to distrain and sell and realise the arrears due.1 The defaulter and his surety, as we have seen, may be Remedies arrested under this Regulation when the arrears cannot ineffectual. be realised by distraint; and by section 15, clause 6, if payment is not immediately made, the landlord may attach and manage the tenant's holding until payment, observing the same rules with respect to the tenants as the defaulter was bound to observe. By clause 7, if the arrear is not liquidated within the year, the landlord may annul the lease if the tenant is an under-farmer: or if the tenant is a dependent talookdar or holder of a transferable tenure, his tenure may be sold through the Court: if the tenant is a leaseholder, or has a right of occupancy only so long as a certain rent, or a rent determinable on certain principles according to local rates and usages, is paid, without any right of property or transferable possession, the proprietor or farmer, or the lessee or assignee of the proprietor, may oust the tenant for breach of the conditions of his tenure. And these powers, except that of sale, may be exercised without 1 S. 9. LECTURE an application to the Court. Regulation VIII of 1819, section 18, in explanation of these provisions, authorises sending a sezawul to attach any tenure between the zemindar and the cultivator, in case a summary suit for arrears has been instituted, and the rent has been in arrear for a whole month. This may be done whether the defaulter has been arrested or not. And when an arrear has been adjudged due, the plaintiff may cancel of his own authority any lease, farm, or other limited interest, intermediate between himself and the actual cultivator, on account of which the rent may have been claimed. He cannot, under the award in the summary suit, sell other real property of the defendant except talooks liable to sale, or talooks under section 3 of Regulation VIII of 1819 which may be sold for their own arrears. These provisions do not apply to khoodkasht ryots: such ryots may be proceeded against by process of arrest, by a summary suit, or by distraint. The above provisions of Regulation VII of 1799 and Regulation VIII of 1819 were also repealed by section 1 of Act X of 1859. Regulation V of 1812 also deals with the same subject. By section 13 distress for rent is illegal unless preceded by demand, accompanied with a jumma-wasilbakee, showing the grounds on which the demand is made. By section 14 ploughs and implements of husbandry are exempt from distress, although there may not be sufficient other property; and by section 15, if the tenant should dispute the demand, he may have the attachment withdrawn upon giving security. These provisions were also repealed by Act X of 1859, section 1. 'See Kishen Coomar Moitro v. Muzhur Ally, S. D. A. (1860), 244. DISTRAINT UNDER THE RENT ACTS. 441 XII. Distraint under By Act X of 1859, section 112, and Act VIII of 1869, LECTURE (B. C.), section 68, the produce of the land is "held to be hypothecated for the rent payable in respect thereof; and Acts X of 1859 and VIII of when an arrear of rent as defined in section 21 of this Act 1869 (B. C.) is due from any cultivator of land, the zemindar, lakhirajdar, farmer, dependent talookdar, or other person entitled to receive the rent of such land immediately from the actual cultivator thereof, instead of bringing a suit for the arrear as thereinbefore provided, may recover the same by distraint and sale of the produce of the land on account of which the arrear is due, under the following rules: Provided always that, when a cultivator has given security for the payment of his rent, the produce of the land for the rent of which security has been given shall not be liable to distraint. Provided also that no sharer in a joint estate, dependent talook, or other tenure in which a division of lands has not been made amongst the sharers, shall exercise the power of distraint otherwise than through a manager authorised to collect the rents of the whole estate, talook, or tenure on behalf of all the sharers in the same." Section 21' here referred to defines an arrear of rent as "any instalment of rent which is not paid on or before the day when the same is payable according to the pottah or engagement, or if there be no written specification of the time of payment, at or before the time when such instalment is payable according to established usage." Such an arrear is chargeable with interest at twelve per cent. per annum. By the Regulations of 23rd November 1791 and Regulation VIII of 1793,3 the instalments of rent are to be 1 S. 20 of Act X of 1859. 2 Colebrooke's Supplement, 308. Art. 69. 442 DISTRAINT UNDER THE RENT ACTS. LECTURE adjusted according to the periods of reaping and selling the produce. XII. The rules referred to are contained in the following provisions. Distraint shall not be made for any arrear which has been due more than a year, nor for any sum in excess of the rent payable for the same land for the preceding year, unless a written engagement for the payment of such excess has been executed by the cultivator. Provision is made for distraint by managers under the Court of Wards, and surbarakars and tehsildars of estates held khas, and other persons lawfully in charge, and also by agents. "Standing crops and other ungathered products of the earth, and crops or other products when reaped or gathered and deposited in any threshing-floor or place for treading out grain, or the like, whether in a field or within a homestead, may be distrained," if they are the produce of the land in respect of which an arrear of rent is due, or held under the same engagement: "and no grain or other produce after it has been stored by the cultivator, and no other property whatsoever, shall be liable to distraint under this Act."3 A demand and account showing the grounds of demand must be served on the tenant before distraint. Standing crops and other ungathered products may be reaped and gathered by the tenant, or in default of his doing so the distrainers shall reap and gather them; and such crops or products as do not admit of being stored may be sold before being cut or gathered; but in such case the distraint shall be made at least twenty days before the Act X of 1859, s. 113. 2 Act X of 1859, s. 114. 3 Act X of 1859, s. 115. Act X of 1859, s. 116. Act VIII of 1869 (B. C.), s. 69. XII, time when the crops or products, or any part thereof, LECTURE would be fit for cutting or gathering.' There are further provisions in case of resistance for sale of the distress, and for proceedings and suits to contest or avoid the distress and sale, which we need not here consider." The ryot may also be ejected if an arrear of rent remains Ejectment. due at the end of the native year; but if he has a right of occupancy, or holds under a subsisting pottah, he cannot be ejected except in execution of a decree or order under the Acts. And " when an arrear of rent shall be adjudged to be due from any farmer or other lease-holder not having a permanent or transferable interest in the land, the lease of such leaseholder shall be liable to be cancelled, and the leaseholder to be ejected," but only in execution of a decree or order under the Acts.* lity of default The person and property of a defaulter may also be Personal liabiproceeded against, but not simultaneously.5 Act X of 1859 er. and Act VIII of 1869 (B.C.) abolish all modes of recovering rent except by suit or distress, and the landlords are forbidden to compel the attendance of their tenants for the adjustment of their rents or for any other purpose.6 I shall now give the provisions with respect to sale for Sale. arrears of rent. Regulation VII of 1799, section 15, clause 7,7 provides that if an arrear of rent is not liquidated within the year, the landlord may annul the lease if the tenant is an 1 Act X of 1859, s. 118. Act VIII of 1869 (B. C.), s. 74. * Act X of 1859, s. 22. 78 to 80 of Act X of 1859, * Act X of 1859, s. 17. Act X of 1859, s. 11. 7 Repealed by Act X of Act VIII of 1869 (B. C.), s. 23. See ss. |