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Mohanta Ramdas Aulia Vs. Bazley Karim Fazlay Moula and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1940Cal83
AppellantMohanta Ramdas Aulia
RespondentBazley Karim Fazlay Moula and ors.
Excerpt:
- .....was discrepant. it is apparently not certain whether the transfer was a sale or heba-bil-ewaj. the learned munsif held that there was no evidence to prove that the transfer had been recognized. this finding was reversed by the learned district judge.2. now, the contesting defendant made no attempt to prove that the transfer fee had been paid or security tendered and accepted. he consented himself with relying upon statements made in the plaint. there is certainly an admission in the plaint to the effect that defendant 1 is liable for the rent. the learned munsif rightly pointed out that this does not amount to an admission that defendant 1 was the sole tenant. it is obvious that unless the transfer deed is produced, it may be that defendant 2 has only transferred a portion of his.....
Judgment:

Henderson, J.

1. This appeal is by the plaintiff who is the zamindar. The suit was instituted to recover the rent due on a certain putni which belonged originally to one Nurul Huq, who is the father of defendant 2 and husband of defendant 3. Defendant 1 was also impleaded on the ground that she had obtained a transfer from defendant 2. The suit was contested by defendant 2 on the ground that he was relieved of all liability by his transfer in favour of defendant 1. The document was not produced and the evidence adduced on behalf of defendant 2 was discrepant. It is apparently not certain whether the transfer was a sale or heba-bil-ewaj. The learned Munsif held that there was no evidence to prove that the transfer had been recognized. This finding was reversed by the learned District Judge.

2. Now, the contesting defendant made no attempt to prove that the transfer fee had been paid or security tendered and accepted. He consented himself with relying upon statements made in the plaint. There is certainly an admission in the plaint to the effect that defendant 1 is liable for the rent. The learned Munsif rightly pointed out that this does not amount to an admission that defendant 1 was the sole tenant. It is obvious that unless the transfer deed is produced, it may be that defendant 2 has only transferred a portion of his interest. The view taken by the learned Munsif was therefore correct. On behalf of the contesting respondent, Mr. Mukherji suggested that no harm has been done to the plaintiff by the decree made by the learned District Judge, because it will be open to the plaintiff to sell the putni in execution. That is of course a mere surmise. It may turn out that defendant 2 has only transferred a portion of his interest, in which case the decree granted by the learned District Judge will be merely a money decree which might turn out to be quite worthless. It is not necessary to consider the second point urged in support of the appeal, that is to say whether defendant 2 could be made liable on his personal covenant. The appeal is allowed, the decree of the lower Appellate Court is set aside and that of the Munsif restored. Defendant 2 will pay the costs of the appellant in this Court and the lower Appellate Court.


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