Richard Garth, C.J.
1. In answer to the questions referred to us, I think that an under-tenure is clearly an incumbrance within the meaning of Section 66, of the Rent Law of 1869, and I also think that, for the purposes of this case, the effect of a sale for arrears of revenue under Regulation VIII of 1819 is substantially the same as that of a sale for arrears of rent under Section 37 of the Rent Law. In either case the under-tenures are not ipso facto avoided by the sale, but are voidable only at the option of the purchasers.
2. In the case of Unnoda Churn Dass Biswas v. Mothura Nath Dass Biswas I.L.R. 4 Cal. 860; s. c. 4 C.L.R. 6. the question which we have now to decide hardly considered. That case came up on appeal before my learned brothers and myself from a decision of Mr. Justice MARKbY and Mr. Justice Prinsep, who had differed as to the time within which a purchaser under the Rent Law was bound to bring a suit to cancel an under-tenure.
3. Mr. Justice Markby thought that the purchaser, in order to entitle himself to sue, must give some notice of his intention to cancel the under-tenure within a reasonable time after the sale. Mr. Justice PRINSEP was of opinion that the purchaser was not bound to give any notice; and that what was a reasonable time for cancelling the under tenure had been defined by Article 1201 of the Limitation Act of 1871.
4. In this I agreed with my brother PRINSEP, and all that we really decided in that case, so far as I am aware, was, that it is not necessary, for the purpose of avoiding an under-tenure or other incumbrance, that the purchaser should give any notice, or to do any act before bringing his suit; and that his suit must be brought within the time prescribed by the Limitation Act.
5. I fear, however, that my own judgment in that case was not as carefully worded as it ought to have been, and that it may have led to an impression, which appears to have been acted upon in subsequent cases, that we intended to lay down, as law, that under Section 37 of the Rent Law incumbrances including under-final were absolutely avoided by the sale.
6. I consider the view of the learned Judges who referred this case to be quite correct, namely, that for the purpose of the question which we have to determine, the same principle applies to sales of arrears of rent as to sales for arrears of revenue, and that both are only voidable at the option of the purchaser.
7. The appeals, therefore, in all the cases depending upon our decision will be dismissed.
Description of suit. period of Time when period begins to
To avoid incumbrances or under- Twelve years... When the sale becomes final
tenures in a patni taluq or other and conclusive.]
saleable tenure sold for arrears of
rent, the taluq or tenure being by
virtue of such sale, freed from
incumbrances and under-Final.