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G.M. Reily Vs. Hur Chunder Ghose and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal722
AppellantG.M. Reily
RespondentHur Chunder Ghose and ors.
Excerpt:
sale for arrears of rent - landlord and tenant--sale of a portion of a tenure--beng. act viii of 1869, sections 59, 60 and 64--co-sharers--parties. - .....that the sale, at which appellant purchased on 15th january 1875, was held under the provisions of beng. act viii of 1869, and that a jama of rs. 30-5-6 out of rs. 60-11 was sold.4. both the lower courts have held that appellant acquired nothing by the purchase, regard being had to section 64 of the act referred to. the first court found that the title of defendant no. 1 was bad, as the mortgage he set up was a fraudulent one.5. the lower court expressed no opinion upon this question.6. we think that the decision of the courts below is correct, so far as it decides that a portion of a tenure cannot be the subject of a sale under section 64, beng. act. viii of 1869, and that appellant cannot make out a title to the half tenure with the privileges attaching to the purchase of an entire.....
Judgment:

Cunningam, J.

1. The main question in this case is, whether a portion of a tenure can be sold for arrears of rent under Beng., Act VIII of 1869.

2. Appellant's case is, that defendant No. 3 who was the landlord of defendant No. 4, and in receipt of a half share of the rent of a tenure rated at Rs. 60-11, caused his share in the tenure to be sold in execution of a decree for arrears of rent. Appellant became the purchaser, and he now claims possession on the ground that he purchased the property free of encumbrances, and that defendant No. 1 has fraudulently and collusively set up a false mortgage by defendant No. 4 and his co-sharers, and in execution of a decree obtained on the mortgage has bought the whole tenure, and ousted appellant from one-half.

3. Reference to the sale certificate shows that the sale, at which appellant purchased on 15th January 1875, was held under the provisions of Beng. Act VIII of 1869, and that a jama of Rs. 30-5-6 out of Rs. 60-11 was sold.

4. Both the lower Courts have held that appellant acquired nothing by the purchase, regard being had to Section 64 of the Act referred to. The first Court found that the title of defendant No. 1 was bad, as the mortgage he set up was a fraudulent one.

5. The lower Court expressed no opinion upon this question.

6. We think that the decision of the Courts below is correct, so far as it decides that a portion of a tenure cannot be the subject of a sale under Section 64, Beng. Act. VIII of 1869, and that appellant cannot make out a title to the half tenure with the privileges attaching to the purchase of an entire tenure under Section 59. It has been established by a number of decisions in this Court that a purchaser under Section 108, Act X of 1859, which corresponds to Section 64, Beng. Act VIII of 1869, acquires the judgment-debtor's rights and interests only.

7. It appears, however, that the defendant No. 4, whose rights and interests were thus sold, was only one of several co-sharers, and we cannot decide in this case, and in the absence of his co-sharers, what that share was. There are, therefore, no sufficient grounds for saying that appellant has even purchased rights in the tenure to the extent of one-half, and it is therefore unnecessary to remand the case for a decision as to the validity of the first defendant's alleged mortgage and decree as against appellant.

8. We therefore dismiss the appeal with costs.


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