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Arun Chandra Ray and ors. Vs. Ramanath Karmakar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal115
AppellantArun Chandra Ray and ors.
RespondentRamanath Karmakar
Cases ReferredPurna Chandra Chatterjee v. Dinabandhu Mukherji
Excerpt:
- .....a valid sale.2. in this appeal it 19 contended that the sale is ab initio void inasmuch as the sale certificate was in the name of the manager of sudhanya, one of the co-sharers and not in his own name. the owners of this tauzi, viz., tauzi no. 14468 in register d are shown as jayalakhi debya, manager of minor sudhanya chandra roy and arun chandra roy. at the time when the entry was originally made in register d sudhanya was a minor, and it appears from the findings of the court of appeal below that after he became major the entry remained unchanged and the judgment-debtor is shown in the certificate as being jayalakhi dabya, manager of sadhanya chandra roy and arun chandra roy. under the land registration act only managers whose names can be entered in register d are managers as.....
Judgment:

Jack, J.

1. This appeal has arisen out of a suit for declaration that a certificate of sale did not affect the right, title and interest of plaintiff 1 Arun Chandra Roy and the father of plaintiffs 2 and 3, Sudhanya Kumar Roy and for recovery of possession of the land concerned with mesne profits on the ground that the sale was null and void. The suit was dismissed in both Courts holding that the sale was not vitiated by fraud as alleged and that it was otherwise a valid sale.

2. In this appeal it 19 contended that the sale is ab initio void inasmuch as the sale certificate was in the name of the manager of Sudhanya, one of the co-sharers and not in his own name. The owners of this tauzi, viz., tauzi No. 14468 in Register D are shown as Jayalakhi Debya, manager of minor Sudhanya Chandra Roy and Arun Chandra Roy. At the time when the entry was originally made in Register D Sudhanya was a minor, and it appears from the findings of the Court of appeal below that after he became major the entry remained unchanged and the judgment-debtor is shown in the certificate as being Jayalakhi Dabya, manager of Sadhanya Chandra Roy and Arun Chandra Roy. Under the Land Registration Act only managers whose names can be entered in Register D are managers as defined in the Act, that is to say, managers appointed by Collectors, Courts of Wards, civil or criminal Courts or managers who are in charge of minors or idiots, or who are trustees or executors. In this case the findings do not show that Jayalakhi Dabya was a manager of this kind. Her name simply remained in Register D after her son Sudhanya attained majority; and, in fact at the time of the sale Jaylakhi Dabya had no interest in the property. So that, that portion of the sale which concerns Jaylakhi Dabya as manager for Sudhanya must be regarded as a nullity inasmuch as there was no cess due by Jaylakhi Debya and she was not the judgment-debtor. The sale therefore only transferred the half-share of Arun Chandra Roy.

3. This view is supported by the case of Kalipada Roy v. Mukundalal Roy : AIR1929Cal679 . It was held in that case that under Section 4 of the Act a manager in the ordinary sense is not a parson from whom public demand is due. That being so, as regards that portion of the sale certificate the certificate would not be valid. When there are no arrears of revenue certificates an officer has no jurisdiction to issue sale certificate or to sell any property under it. In this case the whole sale cannot be treated as null and void because the other cosharer from whom public demand was due was jointly and severally liable for the cess due. The question of estoppel has been raised. Bat from the findings of fact it appears that Sudhanya only came to know of the sale at the time of delivering possession to the auction-purchaser, that is to say, in June 1918. He is therefore not estopped from contending that the sale is void,

4. As regards limitation Article 142, Lim. Act, will apply. For this we find an authority in the case of Purna Chandra Chatterjee v. Dinabandhu Mukherji [1907] 34 Cal. 811. That being so, the plaintiffs are entitled to come in within 12 years of June 1918 so that the suit is not barred by limitation.

5. Another point raised is that the Collector was a necessary party. This issue was raised as issue 5. It was not considered by the Court of appeal below [holding that the suit failed on the merits inasmuch as the whole sale was a nullity. This is not a suit for sotting aside a sale but to recover possession of the property. The Collector was not a necessary party. Only the parties who are in possession are necessary parties, and therefore the suit should not fail on this ground.

6. The result is that the decree of the Court of appeal below is modified to the extent that plaintiffs 2 and 3 will be entitled to recover the half share of their father Sudhanya Chandra Roy with mesne profits. Plaintiffs 2 and 3 are entitled to recover half their costs throughout.

Pearson, J.

7. I agree.


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