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Jatra Mohun Sen Vs. Aukhil Chandra Chowdhry and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1897)ILR24Cal334
AppellantJatra Mohun Sen
RespondentAukhil Chandra Chowdhry and ors.
Cases ReferredSurnomoyee v. Suttees Chunder Roy Bahadur
Excerpt:
sale for arrears of revenue - right of auction--purchasers to annul incumbrances--act xi of 1859, section 37--suit to cancel under--tenures--parties--review--civil procedure code (act xiv of 1882), section 630. - .....sharer in whose name it is recorded; hut the law does not require that, in order to exercise the right to avoid incumbrances, the purchasers, when there are more than one, should all unite in a body to bring a suit or take other steps necessary for the purpose. of course when some only of several purchasers seek to avoid an incumbrance it will be avoided only to the extent of their shares, and with regard to the shares of the other co-sharers, the incumbrancer will he left undisturbed.2. the plaintiff then applied for a review and obtained this rule calling upon the opposite party to show cause why the application should not he granted. the court (banerjee and gordon, jj.) granted the application on the ground that in their judgment in the appeal under review they had (sic)itted to.....
Judgment:

Banerjee and Gordon, JJ.

1. The provisions of Section 37 of Act XI of 1859 are intended as a safeguard for the realization of Government revenue, and are intended to prevent any proprietor for the time being from so incumbering the estate, and thereby reducing its value, as to diminish the security afforded by the estate for the realization of Government revenue. The right in question attaches to the purchaser or purchasers at a sale for arrears of Government revenue, whenever what is sold is an entire estate, as distinguished from a share of an estate which may under certain circumstances be in the first instance brought to sale for arrears of Government revenue due from the sharer in whose name it is recorded; hut the law does not require that, in order to exercise the right to avoid incumbrances, the purchasers, when there are more than one, should all unite in a body to bring a suit or take other steps necessary for the purpose. Of course when some only of several purchasers seek to avoid an incumbrance it will be avoided only to the extent of their shares, and with regard to the shares of the other co-sharers, the incumbrancer will he left undisturbed.

2. The plaintiff then applied for a review and obtained this rule calling upon the opposite party to show cause why the application should not he granted. The Court (Banerjee and Gordon, JJ.) granted the application on the ground that in their judgment in the appeal under review they had (sic)itted to consider two decisions of the High Court, one in the case of Dwarka Nath Pal v. Grish Chunder Bandopadhya I.L.R. 6 Cal. 827 and the other in the case of Bungo Chunder Mozoomdar v. Brojo Mohan Watadar Appeal from Appellate Decree No. 1772 of 1892. The case was then at once re-heard under Section 630 of the Civil Procedure Code.

3. Mr. Woodroffe, Babu Akhoy Kumar Banerjee, and Mr. Percival for the Petitioner.

4. Babu Hari Mohan Chuckerbutty for the opposite party.

Banerjee and Gordon, J J.

5. The main question raised at this re-hearing is whether the right that is given to the auction-purchaser of an entire estate in the permanently-settled (sic) of Bengal, Behar and Orissa, sold for arrears of revenue, under Section 37 of Act XI of 1859 to avoid and annul an under-tenure, is a right that must be exercised by all the purchasers jointly, whore there are more purchasers than one, or whether it is open to any one of a number of co-purchasers to enforce that right. The Lower Appellate Court has taken the former view as being the one that is in accordance with the true meaning of the section, and it has accordingly held that it was not competent to the defendant No. 1, who was one of a body of purchasers by whom the estate had been purchased, to defeat the plaintiffs right as lalukdar. Against that judgment this second appeal was preferred; and in our former judgment we held that the view taken by the Subordinate Judge was wrong, and that under Section 37 of Act XI of 1859 any one of several purchasers of an entire estate sold for arrears of revenue was competent to avoid an under-tenure subordinate to the estate, although the other co-purchasers might not join him. We held that the object of Section 37 was simply to protect the public revenue, and that to secure that object it gave to the purchaser of an entire estate as distinguished from a purchaser of a shave of an estate sold for arrears of revenue as provided in Section 53 of the Act, the right to avoid incumbrances and under-tenures, and to take the estate in the condition in which it was at the time of the Permanent Settlement. In taking that view, we omitted to (sic) into consideration one other wholesome purpose, that the language of (sic) 37 was intended to serve, viz; the purpose of preventing hardship to (sic) incumbrances and under-tenures such as they would be subjected to (sic) Persons than one Purchase an estate, it was competent to any (sic) set aside an incumbrance or an under-tenure notwithstanding that his co-purchasers might be unwilling to join him in doing so. This matter was taken into consideration in the unreported case to which we have referred, viz., Bungo Chunder Mozoomdary. Brojo Mohan W(sic)dar (Appeal from Appellate Decree No. 1772 of 1892), in which there occurs the following passage in the judgment: 'If we could feel sure that the only object of Section 37 was that referred to above, we should be bound to attach the greatest possible weight to this argument. But it is not unreasonable to suppose that, besides the one mentioned above, which is no doubt its primary object, the section has been intended to secure also certain other objects, such as the prevention of undue inconvenience and hardship which might arise from subjecting the holders of incumbrances to a multiplicity of suits by different purchasers at one sale, or to suits for partial cancellation of incumbrances at the instance of some out of several co-purchasers when the others are unwilling, or (as in this case) incompetent, to effect such cancellation. And if chat is so, we must hold that the language of the section has advisedly been made what it is and we must construe it literally.' The same view has been taken in the case of Dwarka Nath Pal v. Grish Chunder Bundopadhya I.L.R. 6 Cal. 827 and it has our full concurrence. We may add that stringent provisions like that laid down in Section 37 of Act XI of 1859 have always been construed strictly and in favour of holders of incumbrances and under-tenures so as to prevent hardship as much as possible. We need only refer to the decision of the Judicial Committee in the case of Surnomoyee v. Suttees Chunder Roy Bahadur 10 Moo. I.A. 123.

6. Babu Hari Mohun Chuckerbutty for the appellant-defendant No. 1 contended that, though this may be true for those cases where an auction-purchaser is the plaintiff and seeks to avoid a tenure, the same rule ought not to hold good where the auction-purchaser is not a plaintiff seeking to cancel an under-tenure, but is only a defendant resisting the claim of an under-tenure-holder to recover possession. We are unable to accept this contention as correct. It has been found in this case that the plaintiff-respondent before us owned a taluk, and that his right as proprietor of that taluk has not been affected by the law (sic) His right as talukdar must, therefore, be held to be a subsisting right, un(sic) is shown to have been avoided by the revenue sale at which the appellant became one of the purchasers. The appellant failed to show that he was the sale purchaser or that defendants Nos. 7 and 8 who, according to the plaintiff, were some of the purchasers, have not acquired any right as auction-purchasers; in other words, he has failed to show that he represents the entire body of auction-purchasers. The defendant No. 1 has also failed to show that anything was done by the entire body of auction-purchasers to avoid the plaintiff's taluk. That being so, in the view we have taken of Section 37, that taluk must be held to be a subsisting taluk, and the plaintiff must be held entitled to recover upon the strength of his title as a proprietor of that taluk. The result then is that the decree of the lower Appellate Court will be affirmed and this appeal dismissed with costs.


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