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Sarala Sundari Debi Chowdhurani W/O Jogesh Chandra Sanyal Chowdhury and anr. Vs. Purna Chandra Bhattacharjya and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1943Cal52
AppellantSarala Sundari Debi Chowdhurani W/O Jogesh Chandra Sanyal Chowdhury and anr.
RespondentPurna Chandra Bhattacharjya and anr.
Cases ReferredBungo Chunder Majoomdar v. Brojomohan Tadadar
Excerpt:
- .....the incumbrance.'- consequently, if the provision creating the power did not confer the power to annul incumbrances on any one of the purchasers severally, section 167 did not extend that power to such a person. the right to annul incumbrances is really created by section 159 (i), ben. ten. act, which uses the words 'the purchaser.' section 166(ii) also uses the words 'the purchaser.' section 167 simply lays down the procedure to be followed while exercising this power. the words 'a purchaser having power to annul' as used in section 167(i), ben. ten. act, in our opinion, mean and refer to 'the entire body of purchasers' when there are more than one purchaser of the tenure or holding.8. the enactments which invest private persons or bodies for their own benefit or profit with.....
Judgment:

1. This appeal is by defendants 2 and 3 and it arises out of a suit for foreclosure of a mortgage. The mortgage in question is one by way of conditional sale and the mortgaged property is a jote belonging to one Shaikh Hanif who died leaving behind him as his heirs defendant 1 Shaikh Kasamuddin and Kaymat's wife. Defendant 1 Shaikh Kasamuddin borrowed Bs. 100 by mortgaging the property in January 1925. In 1929, the landlords instituted rent suit No. 594 of that year against Kasamuddin and Kaymat's wife, who were admittedly the only heirs of Shaikh Hanif and obtained a decree. The jote was sold in execution of this decree as per Execution Case No. 199 of 1930 and was purchased by defendants 2 and 3. The sale certificate is Ex. C in this case. The sale was with power to annul all incumbrances. But the purchasers did not take any steps to annul the above mortgage of 1925. The present suit for foreclosure of the mortgage of 1925 was instituted on 28th September 1937 making the purchasers in the rent execution case as defendants 2 and 3. Summonses were served on the defendants in October 1937. Thereafter defendants 2 and 3 applied for service of notice for annulment of incumbrance under Section 167, Ben. Ten. Act, on 2lst June 1938 alleging that they had no notice of the mortgage prior to the service of summons on them in the foreclosure suit.

2. The case of the plaintiff is that soon after the sale in execution of the decree for arrears of rent he approached defendants 2 and 3 and informed them of the mortgage and that in any case the mortgage having been created by a document duly registered the defendants must be deemed to have notice of the incumbrance within the reasonable time after their purchase. The Court of first instance decreed the suit only against defendant 1 and dismissed it against defendants 2 and 3, holding that they had no prior notice of the incumbrance as alleged by the plaintiff and that consequently the incumbrance was annulled by them by the steps taken under Section 167, Ben. Ten. Act, on 2lst June 1938. On appeal by the plaintiff, the learned Subordinate Judge found that at least defendant 3 was fully aware of the mortgage about three years before the present suit and consequently the steps taken by them under Section 167, Ben. Ten. Act, was not within time. On this finding, the learned Subordinate Judge held that the incumbrance was not annulled in time and consequently was binding on defendants 2 and 3 also. In this view he decreed the suit as against defendants 2 and 3 as well. The learned Subordinate Judge adverted also to the fact that the martgage in question was effected by a document duly registered under the Registration Act and though not clear, he seems to have held that both the defendants must therefore be saddled with notice of the mortgage. The following points have been urged in support of the present appeal:

(1) that on a proper construction of the relevant sections of the Bengal Tenancy Act, any one of the purchasers can take effective steps under Section 167 (1), Ben. Ten. Act, to annul the incumbrance and consequently in the absence of any finding that defendant 2 had any prior notice of the incumbrance the steps taken by her under Section 167(1), Ben. Ten. Act, on 21st June 1938 should have been held to have annulled the incumbrance; (a) that at any rate the incumbrance should have been held as annulled pro rata to the extent of her share in the purchase;

(2) that even assuming that the relevant provisions of the Bengal Tenancy Act, confer the power to annul the incumbrances on the purchasers jointly, time under Section 167(1) would not run against any of them till the entire body of the purchasers get notice of the incumbrance and consequently in the absence of any finding that defendant 2 had any prior notice of the incumbrance, then steps taken by defendants 2 and 3 on 21st June 1938 under Section 167(1), Ben. Ten. Act, should have been held as within time and accordingly effective for the purpose of annulling the incumbrance;

(3) that the fact that the mortgage in question was by a document duly registered under the Registration Act did not affect defendants 2 and 3 with the notice of the mortgage as they were under no obligation to make any inquiry as to the incumbrances after their purchase. It is Section 159(1), Ben. Ten. Act, chap. 14, which really creates the power to annul the incumbrances. The relevant portion of the section runs as follows:

When tenure or holding is sold in execution of a decree for arrears due inrespect thereof, the purchaser shall take...with power to annul the interests defined in this Chapter as 'incumbrances;'

Provided as follows:...

* * * * * * *(b) the power to annul shall be exercisable only in manner by this Chapter directed.

3. Section 161 of the Chapter defines 'incumbrance.' Section 163 gives the procedure for publication of the sale of a tenure or holding in execution of the decree for an arrear of rent due for the tenure or holding. Section 166 provides for the sale of an occupancy holding so advertised for sale under Section 163 and Section 167 provides for the manner in which and the time within which the power to annul the incumbrance is to be exercised. As has been stated above Section 159(1) of the Act really creates the power of annulment and the power is created in favour of 'the purchaser.' The actual sale may or may not be with the power contemplated by Section 159(1). But if it be with the power of annulment the power must be exercisable only by 'the purchaser'. Section 166 (1) lays down when the sale shall be with power to avoid the incumbrances. Clause (2) of the Section lays down how the purchaser is to exercise this power. Section 167 then lays down the procedure to be followed in exercising the power. Section 166, Ben. Ten. Act, which confers the power on the actual purchaser to avoid all incumbrances runs as follows:

(i) When an occupancy holding, not held at fixed rates, has been advertised for sale under Section 163, It shall be put up to auction and sold with power to avoid all incumbrances. (ii) The purchaser at a sale under this section may, in manner provided by Section 167 and not otherwise, annul any incumbrance on the holding.

Section 167(i) runs as follows:

A purchaser having power to annul an incumbranee under Section 164, 165 or 166 and desiring to annul the same, may, within one year from the date of the confirmation of the sale or the date on which he first has notice of the incumbrance whichever is later, present to the Court which passed the decree...an application in writing, requesting him to serve on the incumbrancer a notice declaring that the encumbrance is annulled.

4. The provisions analogous to those contained in Sections 159(1) and 166(1), Ben. Ten. Act, are to be found also in the Revenue Sale Law (Act 11 of 1859). Section 37 of the Act confers on the purchaser similar power to avoid and annul all under-tenures. The relevant portion of this section runs as follows:

The purchaser of an entire estate...sold under this Act for the recovery of arrears due on account of the same...shall be entitled to avoid and annul all under-tenures, and forthwith to eject all under-tenants....

5. It seems clear from the above extracts that the power to avoid the incumbrances is created only in favour of 'the purchaser' and the provisions contained in the Bengal Tenancy Act and those contained in Section 37, Eevenue Sale Law, so far as that statute confers upon the purchaser power to avoid and annul all under-tenures are in pari materia. There is no direct authority as to the meaning of the words 'the purchaser' as used in Sections 159(i) and 166(ii), Ben. Ten. Act. But there is ample authority for saying that in the analogous provision contained in Section 37, Revenue Sale Law, the words 'the purchaser' mean 'the purchasers jointly. See in this connection the recent decision of this Court in Section A. No. 672 of 1939 where several of the previous decisions on the point were examined and discussed. An examination of the decisions involving the construction of this section will yield the following result: (1) The right that is given - by Section 37 is given to the entire body of the auction purchasers jointly; (a) one of the two joint auction purchasers who, without the consent of his cosharer brings a suit to avoid under tenure, cannot be recognised as the purchaser of an entire estate within the meaning of Section 37 of the Act : 6 Cal. 827 (81) 6 Cal. 827, Dwarka Nath Pal v. Girish Chunder (Norris and Tottenham JJ.); (s. A. No. 1772 of 1892 decided by Norris and Banerjee JJ. on 22nd December 1893) S.A. No. 1772 of 1892 Bungo Chunder Majoomdar v. Brojomohan Tadadar;(97) 24 Cal. 334 (97) 24 Cal. 334 Jatra Mohan v. Aukhil Chander (Banerjee and Gordon JJ). (2) The right to avoid the under-tenure must be enforced by the entire body of auction purchasers jointly : 6 Cal. 8271 (Norris and Tottenham JJ); (s.A. No. 1772 of 1892, decided by Norris and Banerjee JJ. on 22nd December 1893); 24 Cal. 334 (97) 24 Cal. 334 (97) 24 Cal. 334 Jatra Mohan v. Aukhil Chander (Banerjee and Gordon JJ). (3) If some one of the auction purchasers become incompetent to avoid the under-tenure, the right is lost to them all; (s. A. No. 1772 of 1892, decided by Norris and Banerjee JJ. on 22nd December 1893); 24 cal.334 (97) 24 Cal. 334 (97) 24 Cal. 334 Jatra Mohan v. Aukhil Chander (Banerjee and Gordon JJ.).

6. On behalf of the appellant it is contended that the law in this respect as given in the Bengal Tenancy Act stands on a different footing. The Revenue Sale Law does not contain any provision corresponding to that contained in Section 167(i), Ben. Ten. Act; there Section 37 of the Act creates the power to annul the under-tenures and that power is created in favour of the purchaser in unqualified terms; consequently, the purchaser 'meaning the entire body of purchasers taken jointly' must exercise that power; but in the Bengal Tenancy Act, the section creating power (namely Section 166 (ii)) lays down that the purchaser at a sale under this section may, in manner provided by Section 167, annul the incumbrance and Section 167, while prescribing the manner avoids the words ' the purchaser ' and uses in it in their place the words 'a purchaser' which mean 'any one of the purchasers'; it is contended that this clearly shows that any one of the purchasers can proceed under Section 167, Ben. Ten. Act, and that action thus taken by any one of them will suffice for the purpose of annulment of the incumbrance.

7. We are unable to accept this contention of the appellant. Section 167(i) uses the words 'a purchaser' and not 'any one of the purchasers' and even the words 'a purchaser' are used with the qualification 'having power to annul the incumbrance.'- Consequently, if the provision creating the power did not confer the power to annul incumbrances on any one of the purchasers severally, Section 167 did not extend that power to such a person. The right to annul incumbrances is really created by Section 159 (i), Ben. Ten. Act, which uses the words 'the purchaser.' Section 166(ii) also uses the words 'the purchaser.' Section 167 simply lays down the procedure to be followed while exercising this power. The words 'a purchaser having power to annul' as used in Section 167(i), Ben. Ten. Act, in our opinion, mean and refer to 'the entire body of purchasers' when there are more than one purchaser of the tenure or holding.

8. The enactments which invest private persons or bodies for their own benefit or profit with privileges and powers interfering with the property or rights of others must be construed against those persons or bodies more strictly perhaps than any other kind of enactment. The provision in Section 37 of the Revenue Sale Law, analogous to those contained in Sections 159(i) and 166(ii), Ben. Ten. Act, has been often been characterised as of a penal character. The powers conferred on the purchaser press hardly upon persons who may have rights of long standing, and were created simply for the purpose of protecting the revenue or the rent : 6 Cal. 827 (81) 6 Cal. 827 Dwarka Nath Pal v. Girish Chunder. The powers conferred by these provisions create what was characterised as 'extreme rights' in Section A. 1772 of 1892 S.A. No. 1772 of 1892 , Bungo Chunder Majoomdar v. Brojomohan Tadadar by Norris and Banerjee JJ. After reading the relevant section of the Bengal Tenancy Act, we are unable to distinguish them from those contained in the Revenue Sale Law and we do not see any reason why the power conferred by the Bengal Tenancy Act should be construed as more extensive than what is conferred by the Revenue Sale Law. In our opinion, the power to annul the incumbrances under the Bengal Tenancy Act is given to 'the pur-fchaser' meaning thereby the entire body of the auction purchasers jointly and that such power must.be exercised by the entire body of the auction purchasers jointly. It is next contended that if the words 'a purchaser' in Section 167(i), Ben. Ten. Act, mean the entire body of purchasers then as the section allows the purchaser to annul any incumbrance within one year from the date on which the purchaser first has notice of the incumbrance, this time will not run against any one of the purchasers unless and until the entire body gets the notice. The view that we take of point 3 raised in this appeal makes it unnecessary for us to enter into this question.

9. The section speaks of a purchaser having notice of the incumbrance. It does not require the incumbrancer to give notice of the incumbrance to the purchaser. It is immaterial whence the purchaser gets the notice. The word 'notice' is more comprehensive than 'knowledge.' A person is said to have notice of a fact when he actually knows that fact or when, but for wilful abstention from an inquiry or search which he ought to have made or gross negligence, he would have known it. If a person has actual knowledge of a fact he certainly has notice of it. But even when he has no knowledge of the fact he may be said to have notice of the same. In our opinion, a purchaser with the extreme power to avoid and annul interests otherwise perfectly valid and legal, should at least have resort to all available and authentic means of finding out whether or not there has been any such interest in the property purchased by him. When the incumbrance in question has been effected by a registered instrument an inquiry within a reasonable time after the purchase would lead the purchaser to a knowledge of it and, in our opinion, it was his duty to make such inquiry. The purchaser cannot avoid the consequences of notice simply by an abstention from such inquiry, 'in the facts and circumstances of this case both the purchasers must be taken to have notice of the incumbrance long beyond one year from the date when they took action under Section 167, Ben. Ten. Act. Either they did make inquiry in the registration office or they did not. If they did inquire, they certainly had knowledge of the incumbrance. If they did not inquire their conduct was one of wilful abstention or gross negligence, and. they should not be allowed to avoid the consequences of notice by such conduct. In our opinion, therefore, both defendants 2 and 3 must be taken to have notice of the mortgage within a reasonable time after their purchase and consequently long beyond one year prior to the date when they proceeded to take action under Section 167(i), Ben. Ten. Act, The action taken by them under that section on 2lst June 1938, therefore failed to annul the incumbrance. In the result this appeal fails and is dismissed with costs.


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