Richard Garth, C.J.
1. Mr. Justice Markby's view appears to have been founded on the supposition that the sale of the patni did not of itself avoid the under-tenure, unless it was followed by an intimation by the purchaser or those claiming under him, that he or they intended to exercise their right to cancel it, or, in other words, that the under-tenures were only voidable at the option of the purchaser or his assigns, and that this option must be exercised within a reasonable time.
2. Now the language of Beng., Act VIII of 1865 is, that 'purchasers of tenures sold under that Act acquire them free from all incumbrances which may have accrued thereon by any act of any holders of those tenures, their representatives, or assigns.'
3. I think that must mean, that at the time when the purchaser acquires the tenure, all under-tenures created by the former holder of the tenure are ipso facto avoided by the sale; and that he and those claiming under him are by Article 120 of the Limitation Act entitled to bring their suit for the purpose of realizing the subject-matter of those under-tenures within twelve years from the time of the auction-sale.
4. I confess, it seems to me, that the words of Article 120, 'to avoid incumbrances of under-tenures in a patni taluk, &c;,' are hardly appropriate; because the sale itself, in the view which I take, avoids the under-tenures; and the suit to which Article 120 is intended to apply, must be, I think, a suit like the present to recover possession of the subject of the under-tenure.
5. As my learned brothers agree with me, the decision of the Division Bench, which was in accordance with Mr. Justice Markby's opinion, will be reversed, and also the decisions of the lower Courts; and the plaintiff will be entitled to recover what he claims in this suit with costs in all the Courts.
6. I am of the same opinion. I think the only interpretation to be put on the word 'avoid' in Articles 119 and 120 of Act IX of 1871, Scheduleii, is, 'to do something in exercise of the right of avoidance.' The words of Section 16 of Beng. Act VIII of 1865 are quite unambiguous, and do not enable the purchaser, at his option or discretion, to avoid under-tenures, but declare that he acquires the under-tenure which is sold under the Act free from all incumbrances.
7. But even if the case had been otherwise, I confess I see no ground for refusing the plaintiff his remedy in this case, because we understand that the zemindar, who was himself the purchaser of the patni taluk, not only refused to receive rent from the holder of the oust taluk, but proceeded to create entirely other relations, by creating the lands comprised in the taluks, or some of them, into a miras ijara; that is to say, he parted with his rights and with the rights of the zemindar, absolutely, to a new holder, reserving only a certain ijara rent for himself, and in that way, I should say, he gave, in the plainest manner, notice of his intention to avoid, it may be called, or to act upon the privilege which the law confers of acquiring this tenure free of all incumbrances created by the previous patnidar. To import the condition that the intention of the purchaser must be declared within a reasonable time, would be placing a limitation upon the plain words of the legislature, which is quite beyond the power of the Court.