1. This is an appeal by defendant 1 from a decree of the Subordinate Judge of Burdwan setting aside a patni sale.
2. The plaintiffs' case was that Lot Teora, bearing touzi No. 1 of the Burdwan Collectorate, appertains to the zamindari of the Maharaja of Burdwan, defendant 4 in the suit, and that in respect of the said lot there was a patni, which defendant 2, held as patnidars. Their case farther was that defendant 3, held in darpatni a mehal, named Mouza Chandanpnr alias Sisua under the patni, at a rental of Rs. 1,100 per annum; that by a wakfnama in respect of that mehal, executed in 1321, she had constituted herself and her husband, plaintiff 1, as muttawalis, and that, subsequently in 1330, she appointed her son, plaintiff 2, in her place as mutawalli. The plaintiffs' case thus was that they were muttawalis and in that capacity in possession of the said darpatni. The plaintiffs' case further was that there were other darpatnidars under the patni, defendant 2, himself having a darpatni in some mehals, which stood in the name of his mother, and defendants 5 to 7 also holding other darpatnis. The plaintiffs alleged that they were not really in default, but defendant 2 fraudulently and, out of evil motive, prevented them from paying in their darpatni rent, and intentionally defaulted in the payment of the rent of the patni and thus brought about a sale for the arrears due for the last half-year of 1330 amounting to Rs. 2,361-4-3 and fraudulently got the patni, which was worth Rs. 50,000, purchased by his father-in-law, defendant 1, for a paltry sum of Rs. 2,500 in benami for himself, The plaintiff's on these allegations instituted the suit to set the sale aside.
3. Defendants 5 to 7 supported the plaintiffs and Nos. 1, 2 and 4 contested the suit. All pleas taken in defence were overruled and the Court below made a decree in plaintiffs' favour setting aside the patni sale, and declaring that the plaintiffs' darpatni mehal was not affected by it and that the plaintiffs should recover possession of the same.
4. Defendant 1 is the appellant before us. The contesting respondents in the appeal are the plaintiffs, and defendant 4, whose estate is now represented by the Court of Wards.
5. The appellant's contentions are four in number and they are the following: First, that the plaintiffs are not entitled to maintain this suit; second, that the sale notices were duly published and served; third, that there was no fraud on the part of defendant 2, and defendant 1 is not a benamidar for defendant 2, but a real and bona fide purchaser; and fourth, that the form of the decree is bad in law. The plaintiffs are interested in the first three contentions, and defendant 4 in the last two.
6. On the evidence, the second contention cannot possibly be sustained. The Subordinate Judge has discussed the evidence in great detail and has come to a definite conclusion that the sale notice was not published in the mufassil kachari and we entirely agree in his view. Basantakumar Palit (D. W. 3) was the officer of the Raj entrusted to publish this notice in the mufussil. Ha has denied his own signature on the return of service, though that signature has been proved by another witness (D. W. 4) as being of Basanta himself. The Subordinate Judge, on looking at the signatures of the attesting witnesses on the return of service (Ex. D-l), has remarked that the signatures of the attesting witnesses on that document resemble Basanta's handwriting. The appellant has removed the original Ex. D-l, on keeping a copy of it on the record, and we have thus been deprived of the opportunity of examining the signatures ourselves and must accept the Subordinate Judge's remark as correct. The postcard (Ex. D) is but a poor corroboration of Basanta's own evidence as to service and we can only attribute his denial of his signature on the return as due to an. anxiety to dissociate himself with a palpable forgery. On the return appear the signatures of one Kartikchandra Ghosh, said to be the gumasta of the mehal, of one Maniram Bagdi, chaukidar, by the pen of the said Kartikchandra Ghosh and of one Kalidas Ghosh. The plaintiffs have proved from Exs. 9 to 9 (b) that Kartik was not a Ghosh but a De. Kartik Ghosh himself, called as P.W. 3, has denied that the two signatures on the return are his. He has further said that Kalipada Ghosh is not really Ghosh, but De. He has further deposed that Kalipada Da is illiterate; but perhaps he went too far in making this statement, though of this there is no great certainty-one way or the other. The chaukidar Maniram Bagdi's (D.W. 8) evidence is extremely unconvincing. Krishna Khandait (D. W. 9) has given evidence, which it is difficult to believe, because, if. he was present, he would certainly have been an attesting witness. The learned Judge's finding on the question of service of the notice in the mufassil must be upheld.
7. As regards the third contention the relevant evidence, oral and documentary, hag been placed before us and we have come to the conclusion that the plaintiffs' ease on the point is substantially true. We consider it proved that the plaintiffs had duly paid up the darpatni rent up to the end of the year 1329, that one Debendranath Banerji, an officer of defendant 2, came to plaintiff 1 at Gorabazar and took payment of a part of the rent for 1330; that, thereafter, in the middle of Baisakh 1331, he came again and proposed that the balance need not be paid than, but that it would be set off against the consideration for a darpatni settlement in respect of mehal Gobindabati, which was close to defendant 2's mehal Rambari; and that, thereafter, on 30th Baisakh 1331, the plaintiff's man took the balance of darpatni rent for 1330 to defendant 2's house at Purulia, but came back ass ha was told that none was there to receive payment. Plaintiff 1 has examined himself on commission. He appears to be a very respectable gentleman and his deposition satisfies us that he has ample regard for truth. He is corroborated by his books of account, and is supported by the oral evidence of P.W. 11. Debendra, though he wag conducting the litigation on behalf of the defendants, did not venture to go into the witness box. P. W. 6, it is true, has tried to make out that nobody went to the house of defendant 2 to pay the darpatni rent, bat we are not satisfied that this evidence is true. We are of opinion that plaintiff 1 was put on a wrong scent and defendant 2 evaded receiving the darpatni rent, in order to make out a case as to why he could not pay the rent for the patni. The oral and documentary evidence adduced on behalf of the defendants, for the purpose of showing that genuine efforts had been made by defendant 2 to raise money in order to pay the patni rent, in our judgment, is not fit to be relied on. We do not propose to discuss that evidence here; and it would be enough for us to say that we approve of the reasons given by the Subordinate Judge. If the fraud alleged be taken to be proved, as we hold that it has been, an inference as to benami is very easy to make: the only motive, that defendant 2 could have, in acting in the way he did, must have been to purchase the patni again for his own benefit and in somebody else's name.
8. In view of the opinion we have expressed on the second and the third contentions of the appellants, their fourth contention cannot prevail. The provision in Section 14, Regn. 8 of 1819, which says that upon a decree for reversal of a sale the Court shall be careful to indemnify the purchaser against all loss, etc., was never meant to be applicable to the case of a benamidar for the defaulter, who has intentionally brought about a sale for his own benefit. There remains now the first contention to be considered. The original darpatni patta of 1857 (Ex. N) contained a clause, which may be translated either) as:
I and my heirs will not make a gift, sale or heba, or grant sopatni settlement of my darpatni by reducing the aforementioned jama,
I and ray heirs will not make a gift or sale or heba of my darpatni or grant sepatni settlement thereof by reducing the aforementioned jama.
9. The appellants-defendants contend that it is the latter meaning which the clause bears and that the darpatni was not transferable and that consequently the plaintiffs as muttawalis under the wakf and the dead of appointment had not acquired any right as against the patnidar and so were not competent to maintain the suit. In support of this contention they have urged that, though Clause 1, Section 3 of the regulation makes all patni taluks heritable and transferable, by Clause 2 patni talukdars are declared to possess the right of letting out the lands of their taluks in any manner that may deem most conducive to their interest and that any engagement so entered into by the talukdars with others shall be legal and binding between the parties to the same, their heirs and assigns. They contend further that under Section 4 it is only if the patnidar has underlet in such manner as to have conveyed a similar interest to that enjoyed by himself that the holder of the tenure acquires similar rights and immunities as attach to patni taluks. They say that in the present case the parties engaged to make the tenure inalienable and that engagement is binding between them, as prior to the Transfer of Property Act, permanent tenures even were ordinarily not transferable. Defendant 4, as supporting the appellants, has argued that the mere use of the word 'darpatni' in the document signifies nothing and that by it a non-transferable permanent tenure was created.
10. The plaintiffs have, on the other hand, relied on the other meaning mentioned above which the clause may bear and say that in order to make the terms of the document consistent, that is the meaning, which should be put on the clause, as was done in the case of a patni lease in the case of Tarini Charan Ganguli v. John Watson  3 B.L.R.A.C. 437. They have also argued that the word 'tenures' in Clause (1), Section 3, should be read as including darpatni tenures, and this contention they seek to support by reference to certain words in the preamble and also the word,-! ' other superior' in Section 6. In our opinion it is not necessary to determine in the present case the precise import; of this clause or to consider whether the restriction it seeks to impose is a valid one or not. There is no doubt that if a darpatni, as meaning a patni taluk of the second degree within the meaning of Section 4, of the regulation, was created it could loot but to a heritable and transferable tenure: Khettur Paul Singh v. Luckhee Narain Mitter  15 W.R. 125 approved by the Judicial Committee in Luckhinarain Miller v. Khettro Pal Singh Roy  13 B.L.R. 146 and Brindabun Chunder Sircar v. Brindabun Chunder Dey  1 I.A. 178. If the word 'darpatrii' in the document was a misnomer land the intention was to create merely a subordinate permanent tenure, such a tenure could be made a non-transferable one. But in any case, the plaintiffs were in possession of the lands of the tenure on payment of rent and as transferees from the original darpatnidar, and the patnidar was accepting the rent but granting dakhilas in the name of the transferor, defendant 3, which was the name recorded in their sherista. Such persons have in oar judgment, ample interest in defending their possession as against a patni sale. Section 14 of the regulation enacts that
it shall be competent to any party desirous of contesting the right of the zamindar to make the sale.
11. Of course, a man in the street would not come within the meaning of these words, but one having a cause of action, such as the plaintiffs have in this case, would, in our judgment, undoubtedly come within the meaning of these words.
12. In the result we affirm the decision of the Court below and dismiss this appeal with costs to the plaintiffs-respondents.