B.K. Mukherjea, J.
1. This rule arises out of an application made by the petitioners for relief under Section 37A, Bengal Agricultural Debtors' Act, and is directed against two orders made by the District Judge of Burdwan under Section 40A, Bengal Agricultural Debtors' Act.
2. The facts material for our present purposes may be shortly stated as follows: One Udhharani Devi who is now dead and who was the wife of opposite party No. 1, Rai Saheb Adwaita Charan Samanta, obtained during her lifetime, a mortgage decree against the petitioners. The decree was put into execution in Execution Case No. 115 of 1947 of the Court of the Subordinate Judge at Burdwan, and the mortgaged properties which were six in number were put up to. sale. Pour out of these six properties were purchased by the decree-holder herself, and the remaining two were obstensibly purchased by her son, opposite party No. 2, Narottam Samanta. After Section 37A was introduced in the Bengal Agricultural Debtors' Act, the petitioners presented an application under that section for restoration of the properties sold. The decree-holder was dead at that time and her husband who is the executor under her will was the principal opposite party. Narottam Samanta, the son of Uddharani, and in whose name two of the properties were purchased was also joined as an opposite party to the proceeding. The case of the petitioners was that the two properties purchased in the name of Narottam were in reality purchased by the decree-holder herself, and all the six properties were in possession of the decree, holder, and after her death, of her husband and executor Rai Saheb Adwaita Charan Samanta at the material time.
3. A preliminary question was raised before the Debt Settlement Board as to whether the Board was competent to enter into the question of benami. It appears that the superior officer of the Debt Settlement Board was consulted, and according to the instructions given by the latter, the Board confined itself to the question of possession merely, and avoided the question of benami. This decision was approved of by the appellate officer and finally confirmed by the District Judge in revision.
4. Eventually the case was heard by the Debt Settlement Officer, Burdwan Sadar the Debt Settlement Board having ceased to exist in the meantime, and he made an award on 6-6-1947, by which the debt was determined, and the petitioners were held entitled to be restored to possession of all the six properties on the finding that the decree-holder's legal representative was in possession of all the six properties at the material date.
5. There were two appeals filed against this award,-one by Rai Saheb Adwaita Charan Samanta, and the other by the son Narottam Samanta, and both the appeals were dismissed by the Appellate Officer. Against these orders of dismissal, there were two revision petitions taken to the District Judge of Burdwan, and the learned District Judge allowed both these revision petitions, and dismissed the application of the petitioners so far as it rotated to the properties purchased by Narottam; and with regard to the other four properties, he sent the case back in order that the award might he made upon a proper basis. It is against these two orders made in revision by the District Judge under Section 40A, Bengal Agricultural Debtors Act, that the present rule has been obtained.
6. Now, so far as the rule against Narottam Samanta is concerned, we think that it is necessary to settle a matter of procedure that has got to be followed by the Debt Settlement Board in cases of this description, One of the essential requisites which has got to be established by the applicant for relief under Section 37A, Bengal Agricultural Debtors Act, is that the property sold was in possession of the decree-holder on or after 20th December 1939, or was alienated before that date in any manner other than those specified in the section. The relief granted under Section 37A, Bengal Agricultural Debtors Act, can be availed of only against a decree-holder, and the clear implication of the different provisions of the section is that the property must be purchased by the decree-holder in the execution or certificate sale and he must have been in possession of the property as purchaser on the material date. Besides the applicant, the only parties whose presence is necessary in a proceeding under Section 37A, Bengal Agricultural Debtors Act, are the decree-holder, the landlord and the mortgagee, if there, is any subsisting mortgage upon the property. This is clear from Sub-section (4) of Section 37A, Bengal Agricultural Debtors Act, as well as the rules framed thereunder. The auction purchaser qua auction purchaser is neither a proper nor a' necessary party to the proceeding, and obviously any question of title as between him and the decree-holder is outside the purview of the section.
7. The question now is what has the debtor to do when the decree-holder has purchased the property in the name of another person, but himself was in possession of the auction purchased property as auction purchaser on the material date. We think that an application under Section 37A, Bengal Agricultural Debtors Act, would lie in such cases also, and the Debt Settlement Board can grant relief to the debtor though the relief is to be granted against the decree-holder merely and the auction purchaser would not be in any way affected by this decision. In such cases, the question for consideration would be not merely whether the decree-holder was in possession on the material date, but whether or not he was in possession as purchaser of the property at the execution sale, even though the ostensible purchaser was somebody else, and to determine the character of possession, the question of benami may be gone into though only incidentally. The award, as we have said, made in such cases would not bind the auction-purchaser, and it would be open to him to set up his title in any appropriate proceeding that might eventually be started.
8. In the case before us, Narottam was the purchaser of two items of mortgaged properties, and his name appears in the sale certificate. 'We do not think that Narottam was a necessary party to the proceeding at all, and his presence was not at all required for the purpose of adjudicating upon the claim of the debtor against the decree holder as contemplated by Section 37A, Bengal Agricultural Debtors Act. If the Board is satisfied that the decree-holder or his legal heir and representative was in possession of the property at the material date, and if it is also found that they were in possession not on behalf of the ostensible purchaser, but as purchasers themselves, obviously an order for restoration of possession could be made against the decree-holder or his representative; but so far as Narottam Samanta is concerned we think that he would be dismissed out of the proceeding altogether as an unnecessary party,: and his rights would not be affected in any way by the decision that might be given in this case.
9. In this view, we have got to consider what is the proper order that should be made in the present case. Now, so far as the four items of property which were purchased by the decree-holder herself are concerned, there is no difficulty whatsoever, and the debtors would certainly be entitled to an order for restoration in their favour. The question as to whether the debt has been properly determined or not, we will consider presently. As regards the other two items of property which were purchased in the name of Narottam, the finding of the Debt Settlement Officer as well as that of the appellate Officer is that his father Rai Saheb Adwaita Charan Samanta was in possession of the property at the material date as executor and legal representative under the will of the decree-holder. The Special Debt Settlement Officer has considered the matter with elaborate thoroughness and has written a very careful and elaborate report where he has considered meticulously the evidence that was adduced by the parties. His conclusion is that the possession of these two items of property remained with the Rai Sahib Adwaita Charan Samanta all along, and this finding was confirmed by the appellate officer. The District Judge, whose judgment seems to us to be very much perfunctory, set aside the finding as regards possession of a two fold ground. He first of all says that there is nothing surprising or unnatural in the gomesta of the father looking after the property of the son, and such acts of possession exercised by the officers of the father could be regarded as evidence of possession by the son also. The learned District Judge entirely lost sight of the fact that the case of the opposite party throughout was that Narottam and his father were entirely separate, and that they had separate officers, separate bank accounts and even separate. morais to stack their paddy in. In the second place, the learned District Judge has pointed out that the Debt Settlement Officer has wholly overlooked the statement contained in an affidavit of assets filed by Rai Sahib Adwaita Charan Samanta in his application for probate of the will of his wife. It is said that in the list of assets, those two items of property did not find a place. This fact might be relevant for the purpose of deciding the question of title, but is altogether irrelevant for determining the fact of possession. In our opinion absolutely no reliance should be placed on the omission of this fact from the affidavit of assets filed by Rai Saheb Adwaita Charan Samanta. We think that the learned District Judge had improperly and in erroneous exercise of his jurisdiction set aside the finding of the appellate officer as well as that of the Debt Settlement Officer. We, therefore, set aside the finding of the District Judge and restore those of the appellate officer and the Debt Settlement Officer.
10. The result is that we make this rule absolute in part. We direct that (1) Narottam Samanta should be dismissed from this proceeding altogether on the finding that he is not a necessary party to this proceeding; (2) there will be an order for restoration of possession against Rai Saheb Adwaita Charan Samanta alone with regard to all the six items of property; and (3) the award made by the Debt Settlement Officer will stand. We are not in a position to find any irregularity or defect in the calculation of the income of the property upon which the award is based. The District Judge will now send the case back to the Debt Settlement Officer for the purpose of disposing of the case in accordance with the directions given above. We make no order as to costs in this Court.
G.N. Das, J.
11. I agree.