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Mohamed Ali and ors. Vs. Jnanada Sundari Chowdharani - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in32Ind.Cas.577
AppellantMohamed Ali and ors.
RespondentJnanada Sundari Chowdharani
Excerpt:
occupancy holding, non-transferable, transfer of - co-sharer landlord recognising transfer of his share of non-transferable occupancy holding effect of--co-sharers, other, right of. - .....by the co-sharers. the learned judge is also under the erroneous impression that the recognition of the transfer by a co-sharer landlord is not valid even to the extent of his share. there is nothing in law to prevent one co-sharer landlord from recognising a transfer in respect of his own share, although such a recognition is not in any way binding upon other co-sharers and may not as such prevent other co-sharers from effecting a sub-division of the holding. both these cases raised a question of separate settlement in favour of the transferees and the court must consider the question of settlement raised by the defendant in each case. in determining the question the court will have to see who made the settlement or the recognition, whether he had any authority to do so and whether.....
Judgment:

1. The learned Subordinate Judge has evidently made a confusion of the two cases. They were tried together. In Appeal No. 3748 a question was raised as to a settlement by a co-sharer mulik in respect of his share. In Appeal No. 3495 a question was raised as to a settlement by the plaintiff's own agent. The learned Subordinate Judge, however, says: 'The defendants' case is that they were recognised as tenants by the co-sharer landlords' tahsildar. This is not so in both cases.' The settlement in Appeal No. 3748 is said to have been made by the co-sharer landlords' tahsildar in the presence of his naib and under his direction and the premium paid is said to have been entered in the zemindar's papers. That would not be a settlement by tahsildar. The learned Subordinate Judge then says: 'As no tahsildar had any authority to recognise any sub-division of the holding, the receipt of rent by any tahsildar, if true, cannot give validity to the transfer.' That may be so. A tahsildar or even a naib may not have a right of sub division without the landlord's consent, but the simple fact of the agent not being entitled to effect a subdivision would not invalidate the recognition by the co-sharers. The learned Judge is also under the erroneous impression that the recognition of the transfer by a co-sharer landlord is not valid even to the extent of his share. There is nothing in law to prevent one co-sharer landlord from recognising a transfer in respect of his own share, although such a recognition is not in any way binding upon other co-sharers and may not as such prevent other co-sharers from effecting a sub-division of the holding. Both these cases raised a question of separate settlement in favour of the transferees and the Court must consider the question of settlement raised by the defendant in each case. In determining the question the Court will have to see who made the settlement or the recognition, whether he had any authority to do so and whether the zemindar directly or indirectly acted upon such recognition. Unless these questions are considered it is not possible to make a proper decree in this case.

2. The judgments and decrees of the lower Appellate Court are, therefore, set aside and the cases sent back to that Court for decision in accordance with law.

3. Costs to abide the result.


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