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Nathu Lal and ors. Vs. Dal Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1934All902; 152Ind.Cas.757
AppellantNathu Lal and ors.
RespondentDal Chand and ors.
Excerpt:
- - considering that the rent reserved by the lease was almost one-fifth of the rent paid by the former tenants, a strong presumption arises that shiva prasad executed the lease with fraudulent intent......for mesne profits. it appears that one durga prasad had a decree against a zamindar of the name of shiva prasad. in execution proceedings the decree-holder on 19th february 1928, attached shiva prasad's haqqiyat in which the plots in suit were included. the then tenants of the plots in suit were paying a rent of rs. 93. but they were ejected by shiva prasad on 23rd may 1926. on 22nd july 1926, shiva prasad gave a lease of these plots to the defendants for one year at a rent of rs. 20 plus a nazrana of rs. 500. on 28th january 1928, the property was sold at auction and was purchased by the plaintiffs. it was pleaded on behalf of the plaintiffs that the defendants were in wrongful possession of the plots in suit and were liable to be dispossessed and to pay mesne profits by way of damages......
Judgment:

Collister, J.

1. The appellants in this appeal wore the plaintiffs in a suit for possession of certain agricultural plots and for mesne profits. It appears that one Durga Prasad had a decree against a zamindar of the name of Shiva Prasad. In execution proceedings the decree-holder on 19th February 1928, attached Shiva Prasad's haqqiyat in which the plots in suit were included. The then tenants of the plots in suit were paying a rent of Rs. 93. But they were ejected by Shiva Prasad on 23rd May 1926. On 22nd July 1926, Shiva Prasad gave a lease of these plots to the defendants for one year at a rent of Rs. 20 plus a nazrana of Rs. 500. On 28th January 1928, the property was sold at auction and was purchased by the plaintiffs. It was pleaded on behalf of the plaintiffs that the defendants were in wrongful possession of the plots in suit and were liable to be dispossessed and to pay mesne profits by way of damages. The defence was that the defendants had entered into a lawful contract of tenancy and that the relationship of landlord and tenant was existing between themselves and the plaintiffs. The Courts below have dismissed the suit. The lower appellate Court finds that Shiva Prasad leased the plots in suit to the defendants in the ordinary course of managing his zamindari, and that they are statutory tenants in the said plots. The latter finding is in accordance with the finding of the revenue Court to which the question, whether the relationship of landlord and tenant existed between the parties, had been referred. The first point which is taken before me in second appeal is that the lease is inadmissible by reason of the fact that it has not been registered. This plea does not appear to have been argued in either of the Courts below and even in the grounds of appeal before the lower appellate Court it was not specifically raised. But since it is a point of law, there is nothing to prevent it being raised for the first time in second appeal. Counsel for the plaintiff argues that the lease in suit is a lease 'reserving a yearly rent' as contemplated by Clause (d), Section 17, Registration Act. I am unable to agree with this contention. It was held by a, Bench of the Bombay High Court in Jivraj Gopal v. Atmaram Dayaram (1890) 14 Bom. 319, that a lease on which a yearly rent is reserved as contemplated by Section 17, Clause (d), Registration Act, must be one which on a proper construction of it would create a tenancy from year to year. And in Seetharama Raju v. B. Pantulu (1894) 17 Mad. 275, it was held by the Madras High Court that a lease for one year only does not require to be registered under Clause (d), Section 17. The very words 'reserving a yearly rent' negative the contention that a lease for one year only was contemplated under Clause (d), Section 17.

2. The other plea which is taken before me is that the lease was void under Section 64, Civil P.C. The lower appellate Court has found that the defendants are statutory tenants, and that their possession of the plots in suit was not tainted by fraud. These are findings of fact; which would ordinarily bind this Court in second appeal; but this Court has power to reverse a finding of fact if it appears to the Court to be based on reasoning which is manifestly wrong. The lower appellate Court has remarked as follows:

Considering that the rent reserved by the lease was almost one-fifth of the rent paid by the former tenants, a strong presumption arises that Shiva Prasad executed the lease with fraudulent intent.

3. But the learned Judge goes to remark that in a sale deed executed by Mt. Misri, the widow of Shiva Prasad, on 2nd January 1928, there is a mention that the rent of these plots is Rs. 92 per annum and he says:

I am therefore inclined to think that the rent of Rs. 20 per year shown in the lease was bogus and that the real rent for which the plots in dispute were let out to the defendants was Rs. 92 a year.

4. This mention of Rs. 92 in the sale deed of 2nd January 1928, cannot in any way avail to alter the terms of the lease which was given to the defendants. It is obvious that the only rent which the plaintiffs are entitled to realize from the defendants is Rs. 20 per annum. Under Section 64, Civil P.C., it is enacted that where an attachment has been made, any private transfer of any interest therein contrary to such attachment shall be void as against all claims enforceable under the attachment. In the case of Debi Prasad v. Baldeo (1896) 18 All. 123 it was held by this Court that an agricultural lease made by a judgment-debtor of property under attachment was an alienation which was void by reason of the provisions contained in Section 276, Civil P.C., then in force. And in the case of Dinobundhu Shev Cohowdhry v. Jagmaya Das (1902) 29 Cal. 151 their Lordships of the Privy Council remarked that Section 276, Civil P.C., did not render void transactions which in no way prejudiced the auction-creditor, but that it did render void such transactions as were prejudicial to him. Section 276 of the old Civil Procedure Code read as follows:

When attachment has been made by actual seizure or by written order duly intimated and made known in manner aforesaid, any private alienation of the property attached, whether by sale, auction, mortgage or otherwise and any payment of the debt or dividend, or a delivery of the share, to the judgment-debtor during the continuance of the attachment, shall be void as against all claims enforceable under the attachment.

5. Under Section 64 of the present Civil Procedure Code, the position is clarified. Under that section it has to be shown that the, transfer was 'contrary to the attachment,' which is the same thing as saying that it must be prejudicial to the interests of the attaching creditor or the auction-purchaser. This is conceded by counsel for the defendants, but he pleads that the transaction in question was nothing more than an act performed by Shiva Prasad in the ordinary and natural course of his management of the property and that the; execution of the lease was therefore not 'contrary to the attachment' within the meaning of the section. I find myself un-| able to accept this view. On the date of attachment, i.e., on 19th February 1926, the plots in suit were being held by tenants who were paying Rs. 93 as rent. Two months later Shiva Prasad ejected them and on the 27th July he let in the defendants on a nominal rent of Rs. 20, but at the same time put into his own pocket a nazarana of Rs. 500. The new Tenancy Act, under which statutory rights were created came into force in the first week of September and it must have been a matter of common knowledge among agriculturists that the Act was likely to pass into law at an early data and that statutory rights would be created under it. Thus when the plaintiffs bought this property at auction they found the plots in suit in the occupation of statutory tenants who were paying rent at a rate which was about one-fifth of the letting value of the land. It is true that the plaintiffs might have the rent enhanced through the Court; but admittedly the extent to which it would be enhanced would fall far short of Rs. 90. In my opinion this act of Shiva Prasad was 'contrary to the attachment' within the meaning of Section 64, Civil P.C. I accordingly allow this appeal and set aside the decree of the lower appellate Court with costs. The lower appellate Court will now proceed to try the remaining issues in suit, i.e., issues 3 and 4, and will thereafter decide the appeal according to law.

6. Permission to file a Letters Patent appeal is granted as prayed.


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