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Nitayi Behari Saha Paramanick and ors. Vs. Hari Govinda Saha and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1899)ILR26Cal677
AppellantNitayi Behari Saha Paramanick and ors.
RespondentHari Govinda Saha and ors.
Cases Referred and Radha Pershad Singh v. Ram Khelawan Singh
Excerpt:
sale for arrears of rent - sale of right, title and interest, of a registered tenant--effect of sale of a tenure in execution of a decree for arrears of rent obtained by a co-sharer landlord against the registered tenant alone. - hill, j.1. the question raised by this appeal is one of some importance. it is not, so far as i am aware, met precisely by any direct authority, but its solution depends, as it appears to me, on the application of principles which have been recognized in analogous cases.2. the facts are sufficiently simple. the plaintiffs and the first defendant are co-tenants of a 2 annas 13 gundas 1 cowri 1 krant share in a certain shikmi taluk, the name of the first defendant alone being registered in respect of the share in the zemindar's sheristha. the other shareholders in the taluk have opened separate accounts with the zemindar. the third and fourth defendants, who are fractional shareholders in the zemindari, sued the first defendant alone for the entire rent due in respect of the 2 annas 13.....
Judgment:

Hill, J.

1. The question raised by this appeal is one of some importance. It is not, so far as I am aware, met precisely by any direct authority, but its solution depends, as it appears to me, on the application of principles which have been recognized in analogous cases.

2. The facts are sufficiently simple. The plaintiffs and the first defendant are co-tenants of a 2 annas 13 gundas 1 cowri 1 krant share in a certain shikmi taluk, the name of the first defendant alone being registered in respect of the share in the zemindar's sheristha. The other shareholders in the taluk have opened separate accounts with the zemindar. The third and fourth defendants, who are fractional shareholders in the zemindari, sued the first defendant alone for the entire rent due in respect of the 2 annas 13 gundas 1 cowri 1 krant share of the taluk for the years 1298 and 1299, and obtained a decree in execution of which the share in question was brought to sale and purchased by the second defendant on the 11th December 1894. The plaintiff's now sue to set aside this sale, alleging fraud and collusion between the first defendant and the third and fourth defendants, and contending further that all that could, according to law, pass to the purchaser by the sale of the 11th December was the interest in the taluk of the first defendant, on which footing they also ask for relief. It is only with the latter contention that we are now concerned, the former having been negatived by the findings of the Courts below, and the sole question for our determination is whether the plaintiffs are entitled to the extent of their own interest in the taluk to have the sale in execution set aside.

3. The suit was dismissed by the Lower Appellate Court, the learned Subordinate Judge being of opinion that the case fell within the principles laid down by this Court in Jeo Lal Singh v. Gunga Pershad (1884) I.L.R., 10 Cal., 996. He quotes with approval from the judgment of the Munsif the following passage: 'The defendant has proved, and it is to a certain extent admitted by the plaintiffs, that the share sold away (i.e., 2 annas 13 gundas 1 cowri 1 krant share) stood in the name of the defendant No. 1 alone; that the zemindar used to sue defendant No. 1 for rent for the share; that the defendant No. 1 used to realize a rateable share of costs, rent, cesses, &c;, which he was bound to pay under the rent decree from the plaintiff's sometimes amicably and generally by contribution suits; and that such was the state of affairs for many years.' He further finds specifically that it is proved that 'the said taluk (comprising the 2 annas 13 gundas 1 cowri 1 krant share) was sold and purchased by the defendant No. 2.' Under those circumstances, and in view of the consideration that the third and fourth defendants had sued the first defendant as representing the ownership of the whole tenure, he considered that the sale ought to operate as a sale of the plaintiffs' interest as well as of those of the first defendant and he accordingly dismissed the suit.

4. It may be added that there was no question before us, or, indeed, throughout the suit, but that the plaintiffs were jointly interested with the first defendant in the taluk and liable equally with him in respect of the rent. Further, it was admitted that the proceedings in execution under which the second defendant purchased were bad under the provisions of the Code of Civil Procedure. But I may point out with advertence to a consideration to which some weight appears to have been given by Garth, C.J., in the case of Jeo Lal Singh v. Gunga Pershad (1884) I.L.R., 10 Cal., 996, that the third and fourth defendants being merely fractional shareholders in the zemindari had no option but to proceed with the execution of their decree under that Code. I may say also that after a careful examination of the documents bearing upon the sale of the tenure, I think the Subordinate Judge was right in holding that what was sold was the entirety of 2 annas 13 gundas 1 cowri 1 krant share in the taluk. I do not think it necessary in order to support this view to refer now to these documents in detail, more particularly as the finding of the Subordinate Judge on the point was not, as I understood, contested before us. The appellants contented themselves here with the assertion of the principles that a person, who is not a party to a suit, cannot be affected in person or property by anything that is done in the suit, and that a sale in execution of a decree held under the provisions of the Code of Civil Procedure cannot pass anything beyond the right and interest of the judgment-debtor in the property sold. These they relied upon as general and indisputable propositions which needed no authority in support of them; and they also placed reliance in particular upon the cases of Kristo Chunder Ghose v. Rajkristo Bandyopadhya (1885) I.L.R., 12 Cal., 24; and Beni Madhub Roy v. Jaod Ali Sircar (1890) I.L.R., 17 Cal., 390, as well as on certain remarks made by the learned Judges who decided the case of Radha Pershad Singh v. Ram Khelawan Singh (1895) I.L.R., 23 Cal., 302.

5. The first of these cases, however, does not appear to me to help the appellants or to be in point. What happened there was, that one of two shareholders in a zemindari brought a suit for rent against the person recorded as tenure-holder. He obtained a decree, and under the provisions of the Code of Civil Procedure the interest of the judgment-debtor in the tenure was brought to sale. Prior to the institution of the suit, however, the tenure-holder had transferred the tenure to certain persons from whom it devolved upon the plaintiffs. The plaintiffs had frequently sought to compel the landlords to register their names as transferees of the tenure, but without success, and it was decided under these circumstances, firstly, that the plaintiffs might, notwithstanding the non-registration of their names, make a good title to the tenure under the transfer; and secondly that, if in point of fact, the decree under which the sale in execution took place had been obtained by a person who was interested in the zemindari only to the extent of 8 annas, the sale would pass only the rights and interests of the judgment-debtor. That was, it seems to me, a wholly different case from the present. There, if the plaintiffs' case were true, the rights and interests of the judgment-debtor at the time when the sale took place were nil, while the plaintiffs were, to the knowledge of the landlord when he brought the suit (for that must be taken to be so), exclusively entitled to the tenure. There was no question of representation in the case, or of any of the equities upon which the decision of the Lower Appellate Court has proceeded in the present case.

6. Then, the case of Beni Madhub Roy v. Jaod Ali Sircar (1890) I.L.R., 17 Cal., 390, merely affirms the principle which is not disputed, that an attachment of a tenure or holding in execution of a, decree obtained by a fractional co-sharer for arrears of rent of his separate share is not such an attachment as is contemplated by Section 170 of the Bengal Tenancy Act; and it seems to me to be unnecessary to say anything more about it.

7. Lastly there is the case of Radha Pershad Singh v. Ram Khelawan Singh (1895) I.L.R., 23 Cal., 302, which, however, I venture to think, is quite as helpful to the case of the respondents as it is to that of the appellants. Briefly stated, the facts there were that the Maharajah of Dumraon granted a ticca lease to two persons, Nowrong and Ramanund, of a certain village. These two persons belonged to different families, but Ramanund was a member of a family consisting of several persons. The Maharaja obtained a decree for rent against Nowrong and Ramanund alone, and in execution of his decree he attached certain properties (other than those affected by the lease) which belonged to Ramanund and the other members of his family. Upon this a claim was preferred by the other members of Ramanund's family to the property attached, on the ground that they were separate in estate from Ramanund, and that they were in separate possession of the attached property according to their respective shares. The claim was allowed; and then a suit was brought by the decree-holder to have it declared that the other members of Ramanund's family were joint with him and participated in the benefits of the leasehold property; that they were, therefore, liable to pay the amount covered by the decree for rent; and that the properties which had been attached were consequently liable to be sold in execution of that decree. The first question to which the learned Judges addressed themselves was whether such a suit would lie. That question they answered in the affirmative. They then went on to consider whether the plaintiff was entitled to succeed on the merits and held that he was not. When introducing the discussion of the latter branch of the case it is observed by Ghose, J.: 'The success of the plaintiff's suit depends upon proof that the defendants were members of a joint undivided family with Ramanund, and that the decree was obtained against Ramanund in his representative capacity.' The finding of the learned Judge on one of the questions thus proposed, as well as his discussion of the evidence, have unfortunately been left out of the report; but he sums up in these terms: 'Upon all these grounds I am unable to say that the decree obtained by the Maharaja against Ramanund was in the latter's representative character, and that for satisfaction of that decree the property of the other defendants is liable to be sold.' Prinsep, J., was, moreover, of opinion that the Subordinate Judge had rightly characterized the evidence brought to show the existence of a joint Hindu family as 'vague, conflicting and unsatisfactory.' The remarks of Mr. Justice Ghose have, however, been seized upon by the appellants as indicating that it is only in the case of members of a joint undivided Hindu family that the doctrine of representation can come in. But I venture to think that they cannot have been intended to convey such a meaning. The suit was based wholly on the assertion of the principle that, in consequence of the fact of Ramanund and the other members of his family constituting a joint undivided family, they, as well as he, were interested in and took the benefits of the lease which stood in his name, and were represented by him, and the only questions, therefore, which arose for decision were whether, in point of fact, the family was joint and was represented by Ramanund. It was only in so far as it bore on the case set up by the plaintiff that it was necessary to lay down the law, and the remarks of the learned Judge must be taken and understood in relation to the facts of the case then before him. It would have been going far beyond the scope of the case to pronounce any opinion upon the general question whether the doctrines of representation are inapplicable in the case of persons who are not members of a joint Hindu family. The judgment of Prinsep, J., to which also reference was made, appears to me to carry the matter no further than that of Ghose, J. The case, however, appears to me to be of importance as recognising the principle which, indeed had often been recognised before, that a decree-holder may sue to have it declared that the interests of third persons may be made liable for the satisfaction of a decree made in a suit to which they were not parties, although the decree was one in execution of which ordinarily the rights and interests of the judgment-debtor alone could be disposed of; and I think that, if such a suit will lie at the instance of a decree-holder, it must be open to the defendant in a suit brought, as in the present case, to impugn a sale in execution, to avail himself in defending the sale, of grounds similar to those upon which a decree holder might rely in the converse case. Indeed, it was laid down by the Privy Council in Nanomi Babuasin v. Modhun Mohun (1885) I.L.R., 13 Cal., 21: L.R., 13 I.A., 1, that a purchaser at a sale in execution, if he has bought the entirety, may defend his title on any ground which would have justified the sale. That case was no doubt in its facts somewhat different from the present, but the principle is, I think, equally applicable here.

8. I now pass to the case made by the respondents. It is no part of their case, I may observe, to controvert either of the rules, regarding them as general propositions, upon which, as I have said, the appellants rely; and their case is, in effect, that the appellants were in fact co-sharers with the first defendant in the tenure and were only, as such, interested in the share of the taluk which was sold; that they were equally liable with the first defendant for the rent in respect of which the sale took place; that the first defendant, being the only registered tenant, represented the other co-sharers in the tenure; that the landlord was entitled to look to him alone as tenant; that the share of the taluk was sold in respect of the entirety of the rent; and that what was sold was the entirety of the share. And they contend that it would be unjust and inequitable, under these circumstances, to allow the sale now to be set aside at the instance of the appellants.

9. I think that this contention ought to prevail. The cases show clearly that the fact that a sale in execution has been had under the provisions of the Code of Civil Procedure is not in itself conclusive of the question whether the interests of persons other than the judgment-debtor have passed under the sale It ia sufficient to mention the cases of Radha Pershad Singh v. Ram Khelawan Singh (1895) I.L.R., 23 Cal., 302, and Jeo Lal Singh v. Gunga Pershad (1884) I.L.R., 10 Cal., 996, to both of which reference has already been made, and the case of Jotendro Mohun Tagore v. Jogul Kishore (1881) I.L.R., 7 Cal., 357, for the purpose of showing this. In the last mentioned case it is said at p. 364 of the report: 'It has been held over and over again, not only in this Court, but by the Privy Council, that the words 'right, title and interest of the execution-debtor must not be construed strictly, but with reference to the circumstances under which the suit is brought, and the true meaning of the decree under which the sale takes place. And this was the more necessary in the case of sales which took place under the old Civil Procedure Code, because by Section 249 of that Code the proclamation in every case was for the sale only of the interests of the execution-debtor. And as a matter of form and practice all sales under that Act were of the right, title and interest of the execution-debtor. It is, therefore, the duty of the Court in each case to ascertain carefully what was intended to be sold,' and this I think embodies the rule by which I ought to be guided in the present case.

10. The case of Jeo Lal Singh v. Gunga Pershad (1884) I.L.R., 10 Cal., 996, was strongly relied upon by the respondents in support of their case generally; and unless it is distinguishable on the ground urged by the appellant it certainly appears to me to be conclusive in their favour. It was a case in which a fractional sharer in a zemindari estate brought a suit against one Gupta Lal, the sole registered tenure-holder, for rent due in respect of the tenure. It appeared that Gupta Lal had two brothers who, along with him, constituted a joint family, and that Gupta Lal being the eldest brother was the manager of the joint property. The tenure was ancestral. The landlord having obtained a decree brought to sale the rights and interests of Gupta Lal in the tenure, and the purchaser having taken possession of the whole tenure, the brothers of Gupta Lal sued to recover their shares on the ground that nothing passed by the sale beyond Gupta Lal's interest. In delivering the judgment of the Court Garth, C.J., after discussing and distinguishing the cases of Doolar chand Sahoo v. Lalla Chabeel Chand (1878) L.R., 6 I.A., 47, and Bissessur Lall Sahoo v. Luchmessur Singh (1879) L.R., 6 I.A., 233, deduced from them these two general propositions: (1) 'When it is clear from the proceedings that what is sold, and intended to be sold, is the interest of the judgment-debtor only, the sale must be confined to that interest, although the decree-holder might have sold the whole tenure if he had taken proper steps to do so, or although the purchasers may have obtained possession of the whole tenure under the sale; (2) but if, on the other hand, it appears that the judgment-debtor has been sued as representing the ownership of the whole tenure and that the sale, though purporting to be of the right and interest of the judgment-debtor only, was intended to be, and in justice and equity ought to operate as, a sale of the tenure, the whole tenure then must be considered as having passed by the sale, and if the question is a doubtful one on the face of the proceedings, or one part of these proceedings may appear inconsistent with another, the Court must look to the substance of the matter and not to the form or language of the proceedings.' The latter branch of this proposition, it may be mentioned, is founded on a passage in the judgment of the Privy Council in the case of Bissessur Lall Sahoo v. Luchmessur Singh (1879) L.R., 6 I.A., 233, where it is said 'in execution proceedings the Court will look at the substance of the transaction and will not be disposed to set aside an execution on mere technical grounds when they find that it is substantially right.' Having laid down these two propositions the learned Chief Justice then proceeds to apply the law to the case before him. He remarks that Gupta Lal was not only the manager but also the sole registered owner of the tenure, and that the fractional sharer in the zemindari took the ordinary and proper course of suing the tenant who in the zemindar's sheristha represented the entire tenure. The judgment then proceeds: 'Moreover, when she had obtained her decree, she was unable, as she only owned a share in the zemindari interest, to sell the whole tenure under Section 59. She could only obtain her execution in the way she proceeded to enforce it, namely, by selling the right and interest of the judgment-debtor under Section 64. But as between her and the persons interested in the tenure she had a right to treat Gupta Lal as the sole owner of the tenure, and when she sold his right and interest for the rent due she was in our opinion selling the tenure itself. As his name was registered as the sole owner of the tenure he represented his brothers' interest in it as well as his own. The rent was due from them all, though he alone was sued for it, and as they were equitably liable to pay the amount of the decree it was only just that their interest as well as his should be sold to satisfy it.

11. Now with the one exception, that the first defendant in the present case was not the manager of a joint Hindu family, it appears to me that it is incapable of being distinguished from the case before Garth, C.J. But it is said that fact in itself involves a vital distinction. I confess I am unable, on a very careful consideration of Sir Richard Garth'S judgment, to discover that he laid any particular stress upon that consideration. It is certainly not referred to in the second of the two general propositions quoted above-the particular proposition which he thought applicable to the case before him; and it is only referred to once in the latter part of the judgment where, so far as I am able to perceive, it occupies a very subordinate place. What the learned Chief Justice does appear to me to insist upon are the considerations that Gupta Lal was properly sued as the registered tenant; that the person who sued him was incapable of obtaining relief otherwise than by selling the right and interest of Gupta Lal; that she was entitled as between herself and the persons interested in the tenure to treat Gupta Lal as the sole owner of the tenure; that by virtue of his being the sole registered owner he represented the interests of his brothers; and that as the latter were equitably liable to pay the amount of the decree it was only just that their interests as well as those of Gupta Lal should be sold to satisfy it. All these considerations are directly applicable to the state of things existing in the case now before us, and are in my opinion sufficient to dispose of it.

12. Is there, however, the vital distinction contended for between the case of the members of a joint Hindu family who have put forward or allowed one of their members to represent them, and that of a group of joint tenants who not being so connected have done the same? Without entering upon the question of the position and authority of the manager of a joint Hindu family, it would seem that the ultimate ground upon which the property of the remaining co-sharers may be made available for the satisfaction of a decree obtained against him alone is simply their liability for the debt upon which the decree is founded, and that liability arises in the case of a lease from the fact that they as well as the manager are interested in and take the benefit of the lease. Garth, C.J., in the case of Jeo Lal Singh v. Gunga Pershad held that the fact of the eldest brother alone being registered as tenant was sufficient to establish his representative character, there being in that case no question of the interest of the remaining brothers in the tenure, which was ancestral. In Radha Pershad Singh v. Ram Khelawan Singh, Ghose, J., held that it lay on the plaintiff only to show that the defendants were members of a joint undivided family with Ramanund, for the purpose presumably of establishing the necessary community of interest; and that Ramanund was sued in his representative capacity. Given, in other words, the community of interest and the necessary representation, and that is all that is required. These principles do not appear to me to be peculiar to the Hindu law or to be restricted in their application to cases in which one has to do with a joint undivided Hindu family. It seems to me that any group of persons might by their action place themselves in such a situation as to bring themselves within the sphere of their application. Thus in Nobin Chandra Roy v. Magantara Dassya (1884) I.L.R., 10 Cal., 924, for example, Garth, C.J., said: 'It is clear that if two out of three partners are sued for a debt due from the partnership and a decree is obtained against those two and execution issues against the partnership property, if the third partner should apply successfully in the execution proceedings to have his share in the property released, the plaintiff's only remedy would be a regular suit, not for the purpose of making the third partner personally liable for the debts, but for the purpose of making the share of the third partner available to satisfy the decree.' This was said not with advertence to any doctrine peculiar to Hindu law, but, as I understand it, generally; and if a decree-holder may in such a case show that the property of the third partner is available for the satisfaction of the decree then, on the principle to which I have referred in an earlier part of my judgment, when the sale has actually taken place, the purchaser at an execution sale, if he be sued by the third partner, may defend his title on similar grounds.

13. As to the equities, I am unable to perceive any material distinction between the case of persons subject to the Hindu law and of those who are not; or why if the property of a Hindu may be made available under the circumstances now in contemplation that of other persons should be exempt. Now in the present case the liability of the plaintiffs for the rent of the share of the tenure in question, as a consequence of their community of interest in it with the first defendant, is not disputed, and the learned Subordinate Judge has found for the same reason as that upon which Garth, C.J., proceeded in Jeo Lal Singh v. Gunga Pershad that the appellants were represented as between them and the landlord by the first defendant. In this I certainly consider that he was right. He has not, it is true, found in specific terms that the first defendant was sued in a representative capacity. But I take it he intended so to find, and looking at the substance of the matter I myself entertain no doubt on the question. The first defendant was to the landlord the sole representative of the tenure, and as such was sued in respect of the entire rent; and it is found as a fact that on previous occasions 'the zemindars used to sue defendant No. 1 for rent for the share,' and that he was in the habit of afterwards realizing their proportion of what he was compelled to pay from the plaintiffs, sometimes amicably, but generally by means of contribution suits not-a state of things which had gone on for many years.' In no case does it appear that the plaintiffs disputed, at all events successfully, their liability along with the first defendant for the sums recovered as against him alone as the person representing the tenure; and it is only now when the sale of the tenure has been brought about, that they seek to repudiate him as their representative. It certainly appears to me that there are ample grounds here for holding that the first defendant was treated by his co-sharers as their representative, and that he was sued in that character, and it appears to me that one of the primary objects which the rules in relation to the registration of tenants is intended to subserve, which is, I think, to protect landlords from difficulties of the kind raised by the plaintiffs in this suit, would be defeated if it were to be held otherwise. In the case of Bissessur Lall Sahoo v. Luchmessur Singh (1879) L.R., 6 I.A., 233, the Privy Council 'assumed' the representative character of the defendant, although there was nothing to show that he was the 'manager' of the family which he was held to represent,--at least no reference is made by the Privy Council to that consideration; and it was in that case that their Lordships laid down the principle to which I have already referred that 'in execution proceedings the Court will look at the substance of the transaction and will not be disposed to set aside an execution upon merely technical grounds when they find that it is substantially right.'

14. Having regard to all the facts and circumstances of the case, I think it would be inequitable and would work manifest injustice if we were now to set aside the sale in question at the suit of persons who admittedly were liable for the rent decreed against the first defendant, and who, as it appears to me, were duly represented as between themselves and their landlord by the first defendant, not only qua the lease, but also in all the proceedings taken by the landlord to secure the recovery of the rent--persons, moreover, who make no offer, but take their stand simply on what they assert to be their legal right.

15. The further question was raised whether the Subordinate Judge was right in his finding that the purchase by the second defendant was not benami for the first defendant. But I see no reason for differing from the learned Subordinate Judge on this point. I have not thought it necessary, I may add, to say anything specifically as regards the position of the second defendant as a bona fide purchaser without notice, as the case was placed before us simply on the grounds indicated above.

16. I would dismiss the appeal; but as my brother Rampini differs from me in this respect, the case must be submitted to the Chief Justice in order that he may appoint a Judge to decide it. Our difference of opinion, as I understand, relates to the effect to be given to the documents of sale--a matter which, for reasons that I have already indicated, I do not, however, regard as conclusive of the case, and to the representation of the plaintiff by the first defendant.

17. Let the case be laid before the Chief Justice for orders.

Rampini, J.

18. In this suit the plaintiff's sue to have the sale of a certain shikmi taluk, in which they have a share, set aside so far as they are concerned, and to have it declared that the sale in question did not affect their interests in the taluk. The plaintiffs and the defendant No. 1 are admittedly the owners of this shikmi taluk. It was sold on the 11th December 1894 in execution of a decree for rent obtained by the defendants Nos. 3 and 4, who are fractional shareholders of the zemindari, against the defendant No. 1. The taluk was purchased at the sale by the defendant No. 2, who contends that he purchased the whole taluk, and that the right of the plaintiffs as well as of the defendant No. 1 passed to him at this sale. The Subordinate Judge found against the plaintiffs and dismissed their suit. They now appeal and contend on various grounds that his judgment is wrong.

19. It is sufficient, I think, for the purposes of this appeal to confine our attention to the question whether the right of the plaintiffs can be regarded as having passed at the sale held in execution of a decree given in a suit to which they were no parties, and in my opinion this question must be answered in the negative. The Subordinate Judge admits that the sale having taken place in execution of a decree obtained by fractional shareholders in the zemindari cannot be regarded as a sale under the provisions of the Bengal Tenancy Act. It must have been, he admits, a sale held under the provisions of the Civil Procedure Code. This is also conceded by the learned pleader for the respondents in this case. The learned Subordinate Judge, however, considers on the authority of the case of Jeo Lal Singh v.Gunga Pershad (1884) I.L.R., 10 Cal., 996, that the defendant No. 1, who was the only tenant of the shikmi taluk recognized by the landlord, must be held to have represented the plaintiffs to the zemindar, and that being so, that their rights must be considered to have been affected by the decree in the suit against the defendant No. 1, and the sale held in execution of the decree. The learned pleader for the respondents adopts the same line of argument, and in support of the view taken by the Lower Appellate Court, the following cases have been cited, viz., Jotendro Mohun Tagore v. Jogul Kishore (1881) I.L.R., 7 Cal., 357; Daulat Ram v. Mehr Chand (1887) I.L.R., 15 Cal., 70: L.R., 14 I.A., 187; Hari Saran Moitra v. Bhubaneswari Debt (1888) I.L.R., 16 Cal., 40: L. r., 151. A., 195; Radha Pershad Singh v. Ram Khelawan Singh (1895) I.L.R., 23 Cal., 302, and Hari Vithal v. Jairam Vithal (1890) I.L.R., 14 Bom., 597. In all these cases, however, the registered tenant or person held to represent the unregistered tenants or others were held to represent the others under some doctrine of Hindu law. Thus, in the case of Jeo Lal Singh v. Gunga Pershad (1884) I.L.R., 10 Cal., 996, the joint holders of the tenure were all members of a joint Hindu family, governed by the Mitakshara law, and the registered tenant, who was held to represent the others, was the managing member of the family. This was pointed out by Ghose, J., in the case of Radha Pershad Singh v. Ram Khelawan Singh (1895) I.L.R., 23 Cal., 302, at p. 317 of the report. In that case, i.e., Radha Pershad Singh v. Ram Khelawan Singh, the persons interested in the lease were also members of a joint Hindu family governed by the Mitakshara law, but as it was held that the ostensible lessee was not sued in his representative capacity, the other persons interested in the lease were not found to be bound by the sale which took place in execution of the decree obtained against him. The facts of Daulat Ram v. Mehr Chand (1887) I.L.R., 15 Cal., 70: L.R., 14 I.A., 187, are similar. In the cases of Jotendro Mohun Tagore v. Jogul Kishore (1881) I.L.R., 7 Cal., 357, and Hari Saran Moitra v. Bhubaneswari Debi (1888) I.L.R., 16 Cal., 40: L.R., 15 I.A., 195, the defendant was a Hindu widow, who was on this ground held to represent the others interested in the property.

20. But these cases seem to me to be no authority for holding that the plaintiffs in this case are bound by the sale held in execution of the decree obtained against the defendant No. 1, for (1) it does not appear that the plaintiffs and the defendant No. 1 are members of a joint Hindu family; (2) they are not said to be governed by the Mitakshara law; (3) there is nothing to lead to the conclusion that the defendant No. 1 was sued as representing them; and (4) it does not appear that what was sold was the shikmi taluk. On the contrary, from the proclamation of sale (Exhibit C), the sale certificate (Exhibit D), and the order confirming the sale (Exhibit 15), it is clear, I consider, that the sale which took place under Section 316 of the Code of Civil Procedure purported to convey only the right, title and interest of the judgment-debtor, defendant No. 1, in the shikmi taluk. A consideration of these documents in detail seems to me to put this matter beyond a doubt. The first of them, the proclamation of sale (Exhibit C) issued under Section 287 of the Code of Civil Procedure proclaims that 'the property of the aforesaid judgment-debtor' (i.e., defendant No; 1) 'as mentioned in the following Schedule shall be sold.' The sale certificate (Exhibit D), declares that what was sold was 'the judgment-debtor's right to the 2 annas 13 gandas 1 cowri 1 krant share in the said taluk.' The order confirming the sale, (Exhibit 15), commences with the preamble that 'whereas the following title, ownership and interest were on the 11th day of December 1894 sold by the Nazir,' and concludes by certifying that 'the sale proceeds of the judgment-debtor's right to the 2 annas 13 gandas 1 cowri 1 krant share in the taluk amounted to Rs. 160.'

21. Further, both the lower Courts have, I think, found as a fact that what wa3 sold was the right, title and interest of the judgment-debtor, defendant No. 1. Thus, the Munsif at page 11 of the paper book says: 'It appears, moreover, from Exhibit C, Exhibit D, Exhibit 12, and Exhibit 15, that the interest only of defendant No. 1 in the property purchased in the name of the defendant No. 2 was sold at the execution of the rent decree. Consequently, on that ground also the sale does not and did not affect the right and interest of the plaintiffs in the property sold and purchased in the name of the defendant No. 2 by defendant No. 1.' The Subordinate Judge does not displace this finding of fact of the Munsif. On the contrary, he seems to accept it, for at page 16 he says: 'it was contended that in the sale notification, the right, title and interest of the judgment-debtor was advertised for sale. But that does not confine the property to be sold to the interest of the defendant No. 1 alone. By right, title and interest of the judgment-debtor it means the right, title and interest of all the co-sharers of the taluk, i.e., plaintiffs and defendant No. 1, the former being as much judgment-debtors of the decree as the latter who had been sued as representing all the holders of the shikmi taluk.' I cannot, however, agree to the interpretation put by the Subordinate Judge on the terms of the proclamation of sale, there being nothing, as already said, on the record, as far as I can see, to show why the defendant No. I should or could represent the plaintiffs in the rent suit, or that he did do so, and therefore I can see no reason why the plaintff's property should be held to have passed at the sale of the right, title and interest of the judgment-debtor, defendant No. 1, in the taluk--a sale held in execution of a decree obtained in a suit in which they were not parties. This sale was certainly not one under the Bengal Tenancy Act, and the purchaser, defendant No. 2, cannot have purchased the whole tenure, nor can the plaintiffs' right be affected by it. In support of this view, I would cite the cases of Kristo Chunder Ghose v. Raj Kristo Bandyopadhya (1885) I.L.R., 12 Cal., 24; Beni Madhub Boy v. Jaod Ram Sircar (1890) I.L.R., 17 Cal., 390, and Jagan Nath Goral v. Watson & Co. (1892) I.L.R., 19 Cal., 341. These cases seem to me to be ample authority for the view taken by me. It would indeed be impossible, I think, for defendants Nos, 3 and 4, by suing under the Civil Procedure Code, to proceed to attach and sell the property of persons not parties to the suit brought by them and in no way shown to have been represented in it.

22. I would accordingly set aside the judgment of the Subordinate Judge and restore that of the Munsif.

23. There being a difference of opinion between the two learned Judges, the case was referred, under Section 575 of the Civil Procedure Code, to Mr. Justice Banerjee, who delivered the following judgment:

Banerjee, J.

24. This appeal arises out of a suit which, after the amendment of the plaint allowed by the first Court, must betaken to have been brought by the plaintiffs, appellants, for setting aside the sale of a shikmi taluk sold in execution of a decree as fraudulent and collusive, or in the alternative, for obtaining a declaration that the sale did not affect the rights of the plaintiffs; and for recovering possession of the plaintiffs' shares in the shikmi taluk.

25. The main allegations upon which the suit was brought were, that the plaintiffs and defendant No. 1 were owners of a 2 annas 13 gandas 1 cowrie 1 krant share, bearing a separate rent, of a shikmi taluk named Kanai Balai; that defendants Nos. 3 and 4, the proprietors of a certain share of the estate under which the shikmi taluk was held, brought a suit for arrears of rent due to them in respect of that share of the shikmi taluk and obtained a collusive decree; and in execution of that decree the defendants 3 and 4 fraudulently suppressing the usual sale proclamation brought about a sale, at which defendant No. 1 purchased the said share of the taluk benami in the name of defendant No. 2.

26. The defendant No. 2, who alone contested the suit, denied the allegations of collusion, fraud and benami, and urged that the rent suit had been rightly brought against defendant No. 1, who was the sole person registered in the landlord's sheristha as the holder of the share of the taluk in question; that the sale in execution of the rent decree was properly held; and that he was a bona fide purchaser of the shikmi taluk on his own behalf and not as benamdar for any one.

27. The first Court held that defendant No. 2 had purchased benami for defendant No. 1, and that the sale in execution of the decree passed only the right, title and interest of the judgment-debtor, defendant No. 1 and it accordingly gave the plaintiffs a decree.

28. On appeal, the Lower Appellate Court has reversed that decree and dismissed the suit, holding that the allegation of fraud was not made out; that defendant No. 2 had purchased on his own behalf, and that defendant No. 1 being the only person registered in the zemindar's sheristha in respect of the share of the shikmi taluk in question, the sale in execution of the decree for rent against him passed not only his own share but that of the plaintiffs as well.

29. Against that decision the plaintiffs have preferred this appeal on the ground that the sale in question could not pass anything more than the share of defendant No. 1. And as the two learned Judges before whom the appeal was heard have differed in opinion, the case has been referred to me under Section 575 of the Code of Civil Procedure.

30. The contention on behalf of the appellants is that a sale in execution of a decree cannot affect the interest of any person who is not a party to the suit, and that the ca3e of Jeo Lal Singh v. Gunga Pershad (1884) I.L.R., 10Cal., 996, upon the authority of which the Lower Appellate Court has dismissed this suit, is distinguishable from the present case, as the decree in that case was against a person who was not only the registered tenant in respect of the tenure for which the rent was claimed, but was also the managing member of a joint Hindu family governed by the Mitakshara law, and was therefore rightly held to represent the other members of the family who brought the suit for reversal of the execution sale. On the other hand, it is contended for the respondents that, though the person against whom the rent decree was passed in the case of Jeo Lal Singh v. Gunga Pershad was a managing member of a Hindu family, the decision of this Court is based, not upon that fact, but upon the fact of his having been the registered tenant in respect of the tenure for which rent was claimed.

31. Mr. Justice Rampini accepts the appellants contention as correct, while Mr. Justice Hill takes the view contended for on the other side.

32. After considering the arguments on both sides, I agree with Mr. Justice Hill in thinking that this case must be governed by that of Jeo Lal Singh v. Gunga Pershad (1884) I.L.R., 10 Cal, 996, and that the decision of the Lower Appellate Court is correct.

33. The general rule, no doubt, is that a sale in execution of a decree cannot affect the interest of any one who is not a party to the decree. But the rule is subject to certain exceptions; and upon the facts found by the Lower Appellate Court the present case comes under one of these exceptions, namely, the one enunciated by Garth, C.J., in Jeo Lal Singh v. Gunga Pershad in the following manner: 'But if on the other hand it appears that the judgment-debtor has been sued as representing the ownership of the whole tenure, and that the sale, although purporting to be of the right and interest of the judgment-debtor only, was intended to be, and in justice and equity ought to operate as, a sale of the tenure, the whole tenure then must be considered as having passed by the sale. And if the question is a doubtful one on the face of the proceedings, or one part of those proceedings may appear inconsistent with another, the Court must look to the substance of the matter and not the form or language of the proceedings.'

34. And a little further on Sir Richard Garth adds: 'Now in the present case, Gupta Lal, the defendant No. 4, was not only the manager but the sole registered owner of the tenure, and Adhikari Koer in claiming against him the entirety of her share of the rent, took the ordinary and proper course of suing the tenant who in the zemindar's sheristha represented the entire tenure.'

35. The facts found in the present case are, that the share sold away (that is 2 annas 13 gandas 1 cowri 1 krant share) stood in the name of defendant No. 1 alone; that the zemindars used to sue defendant No. 1 for rent for the share; that the defendant No. 1 used to realise a rateable share of costs, road cesses, etc., which he was bound to pay under the rent decree from the plaintiffs, sometimes amicably and generally by contribution suits, and that such was the state of affairs for many years,' and 'that the defendants Nos. 3 and 4, who are fractional shareholders of the zemindari, sued the defendant No. 1 as usual, for rent of 1298 and 1299 and obtained a decree in execution of which the said taluk (comprising the 2 annas 13 gandas 1 cowri 1 krant share) was sold and purchased by defendant No. 2 on 11th December 1894.'

36. It is clear, therefore, that here, as in the case of Jeo Lal v. Gunga tershad (1864) I.L.R., 10 Cal., 996, the person sued for rent was the sole registered holder of the tenure in question, and that the persons who brought the rent suit and caused the sale of right, title and interest of the judgment-debtor in the tenure were some of the shareholders in the zemindari and sued the registered tenant, as usual. It is true that in the case cited, the person sued for rent was also the manager of the joint family that owned the tenure, but that circumstance is only incidentally noticed, and does not form any ground for the decision arrived at.

36. The reason for the decision is that, as the law required tenants to register their names in the landlord's office, unregistered co-owners of a tenure by their omitting to have their names registered, must be taken to have acquiesced in the registered tenant representing them in their dealings with the landlord; that in a suit for rent against the registered tenant, he must be taken to have been sued as representing the ownership of the whole tenure; and that a sale in execution of the decree obtained in such a suit, though in terms only a sale of the right, title and interest of the judgment-debtor, must be held really to pass the right, title and interest, not only of the registered tenant, but also of the unregistered co-owners whom he represents; and that reason holds good quite as much in this case as in the case relied upon.

37. The principle enunciated by Sir Richard Garth in the case of Jeo Lal Singh v. Gunga Pershad (1884) I.L.R., 10 Cal., 996, in the passage quoted above, no doubt contains an important condition which must be satisfied, namely, that the sale in question must be one which 'in justice and equity ought to operate as a sale of the tenure.' Having regard to the facts found the this case, namely, that the position of affairs for many years was for the defendants 3 and 4 to sue defendant No. 1 alone for the rent and for defendant No. 1 to realise from the plaintiffs the amount payable by them; that the amount covered by the decree in execution of which the sale took place, was really due, and that the plaintiffs took no steps to pay the amount of rent due in respect of their share, I think the above condition is fully satisfied.

38. It was contended by the learned Vakil for the appellants that as the plaint in the rent suit brought against defendant No. 1 did not state that he was the sole registered tenant, there was nothing on the face of the execution proceedings to show that the decree was made against defendant No. 1 as representing the ownership of the whole tenure, and so defendant No. 2 could not have bid for and purchased anything more than the share of defendant No. 1. I do not consider this contention valid. The defendant No. 1 was sued as the person representing the ownership of the whole tenure for the whole rent due on account of the same in respect of the shares of defendants Nos. 3 and &; and intending purchasers could, and in all likelihood did, ascertain what was the fact, namely, that the defendant No. 1 was the sole registered tenant in respect of that tenure.

39. It was then contended for the appellants that the Lower Appellate Court was wrong in dismissing the suit without coming to any finding upon the question of value which had an important bearing upon the question whether the sale was intended to be, and ought in justice and equity to operate as, a sale of the whole tenure and not merely of the right, title and interest of defendant No. 1. The question of value may have some bearing upon the last mentioned question; but the plaintiffs do not appear to have raised the question in that form in either of the Courts below. It is true they said in their plaint (paragraph 4) that the property was sold for an inadequate price; but they said so only to support the allegation that the sale was fraudulently (brought about by suppressing the issue of the sale proclamation, and their allegation of fraud has bean found by the Lower Appellate Court not established.

40. As for the cases of Kristo Chunder Ghose v. Raj Kristo Bandyopadhya (1885) I.L.R., 12 Cal., 24; Beni Madhub Roy v. Jaod Ali Sircar (1890) I.L.R., 17 Cal, 390, and Radha Pershad Singh v. Ram Khelawan Singh (1895) I.L.R., 23 Gal., 302, relied upon in support of the appeal, I think they are quite distinguishable from the present case as Mr. Justice Hill has shown.

41. I, therefore, agree with Mr. Justice Hill in thinking that the decision of the Lower Appellate Court is right, and that this appeal ought to be dismissed with costs.


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