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Ashutosh Gangopadhya and anr. Vs. Sarojini Saha Chaudhurani and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal205,136Ind.Cas.479
AppellantAshutosh Gangopadhya and anr.
RespondentSarojini Saha Chaudhurani and anr.
Excerpt:
- .....7 of 1869 read with section 9 . of act 11 of 1859, the liability to government, as well as, to the party depositing would attach to the registered defaulter. section 9, act 11 of 1859, states that the person, so depositing, shall be entitled to recover the amount deposited from the defaulting proprietor. as the tenures had been transferred to defendant 3, before this deposit was made and these arrears accrued, he is obviously the defaulting proprietor, so that it is defendant 3 alone, who would be liable under section 9, act 11 of 1859. there is no mention in this section of the registered defaulter. but it is contended on the other side, that under section 69, contract act, the parsons whose names are registered as the proprietors of the tenure, in the collector's register, being.....
Judgment:

Jack, J.

1. This rule has been issued upon the opposite party to show cause why a judgment and decree of the Small Cause Court should not be set aside in a suit by the plaintiff opposite party for contribution on account of rent paid by the plaintiff on account of arrears of rental of tenures alleged to be held by the opposite party in order to save them from sale.

2. The first ground on which the rule was issued is that, the plaintiff opposite party's raiyati holdings, having been in no danger of being avoided or in any way adversely affected by the default in paying up the revenue, the present suit should have been dismissed; and secondly that assuming that the plaintiff was entitled to recover, she was entitled to a decree, only against the Opposite Party 2, who is defendant 3, to whom, the petitioners allege, they had transferred the tenure which was saved from being sold by the payment made by the plaintiffs.

3. As regards the first point, contribution is claimed under Section 9, Act 11 of 1859, and the person depositing the arrears of revenue is entitled to recover the amount if it is deposited in good faith, believing that the interest of the person so depositing is in danger. In the circumstances of the present case, there is no reason to think that the deposit was not made in good faith thinking that the interest of] the plaintiff was endangered by the sale. So there is no substance in this ground.

4. The other ground of the rule is that in fact, the defendants are not liable, because they had already sold their tenure, previous to the period for which the revenue was in arrears. It appears that in the suit, they filed a sale deed, showing that they had transferred their interest to defendant 3, and referring to this the learned Judge of the Small Cause Court says that, defendant 3 did not register her name in the Collector's register after her purchase. It therefore appears that he finds that defendant 3 actually purchased these tenures, but holds that under Section 11, Act 7 of 1869 read with Section 9 . of Act 11 of 1859, the liability to Government, as well as, to the party depositing would attach to the registered defaulter. Section 9, Act 11 of 1859, states that the person, so depositing, shall be entitled to recover the amount deposited from the defaulting proprietor. As the tenures had been transferred to defendant 3, before this deposit was made and these arrears accrued, he is obviously the defaulting proprietor, so that it is defendant 3 alone, who would be liable under Section 9, Act 11 of 1859. There is no mention in this section of the registered defaulter. But it is contended on the other side, that under Section 69, Contract Act, the parsons whose names are registered as the proprietors of the tenure, in the Collector's register, being jointly liable, the plaintiff is also entitled to recover from them. Under Section 68, Land Registration Act, the recorded proprietors are jointly and severally liable for the discharge of any duties and the obligations imposed upon the proprietors of the estate and all persons, who are required by this Act to apply for registration, shall from the date on which the obligation so to register is imposed on them respectively by the Act, be deemed to be liable for the discharge of any duties and obligations, which are by any such law imposed upon the proprietors of the estate. From this it appears that from the date on which (the parties are required to apply for registration, the liability devolves upon them. Defendant 3 having purchased the 'estate it is clear that he should have applied for registration, within six months from the date of his purchase, so that the liability under Section 68 has devolved upon defendant 3. I therefore think that the plaintiff was entitled to the amount claimed against defendant 3, and not [against defendants 1 and 2, because they had already transferred their share, before the period in respect of which the arrears of revenue accrued.

5. The rule is therefore made absolute. The decree of the Court below is set aside and the suit is decreed for the same amount as against defendant 3. The petitioners will be entitled to their costs in this Court--the hearing fee being assessed at one gold mohur.


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