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Ashanulla Khan Bahadur Vs. Rajendra Chandra Rai, for Self and as Executor to the Estate of the Late Debendra Chandra Rai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal464
AppellantAshanulla Khan Bahadur
RespondentRajendra Chandra Rai, for Self and as Executor to the Estate of the Late Debendra Chandra Rai
Cases ReferredReily v. Hur Chunder Ghose I.L.R.
Excerpt:
bengal act viii of 1869, section 64 - landlord and tenant--sale of portion of under-tenure--suit for arrears of rent. - .....thunda bibi and another person held one anna five gundas, and four annas, respectively, of this ousut taluk; that the plaintiff brought two suits for rent due on account of his share in the zamindari from the holders of the two aforesaid shares, respectively; that he obtained decrees, and in execution of those decrees he brought to sale the share of the ousut taluk corresponding with his share in the zamindari, and himself became the purchaser. the plaint further alleges that, subordinate to this ousut taluk gungadhur siddhanto, is a howla, and there is also a nim-howla, subordinate to the howla, both belonging to thunda bibi. it is further alleged in the plaint that the whole rent payable on account of the nim-howla was es. 112, and the plaintiff's share out of it is rs. 17-6; but.....
Judgment:

Mitter and Macpherson, JJ.

1. These appeals will be governed by one judgment. It is alleged in the plaint that the plaintiff is the owner of a zamindari to the extent of seven annas and odd gundas; that within that zamindari there is an ousut taluk called Gungadhur Siddhanto; that the defendant Thunda Bibi and another person held one anna five gundas, and four annas, respectively, of this ousut taluk; that the plaintiff brought two suits for rent due on account of his share in the zamindari from the holders of the two aforesaid shares, respectively; that he obtained decrees, and in execution of those decrees he brought to sale the share of the ousut taluk corresponding with his share in the zamindari, and himself became the purchaser. The plaint further alleges that, subordinate to this ousut taluk Gungadhur Siddhanto, is a howla, and there is also a nim-howla, subordinate to the howla, both belonging to Thunda Bibi. It is further alleged in the plaint that the whole rent payable on account of the nim-howla was Es. 112, and the plaintiff's share out of it is Rs. 17-6; but this share of-the rent, the plaintiff has been collecting separately, and that the defendant Thunda Bibi having defaulted to pay the aforesaid rent in the years 1287, 1288 and 1289, the present suit was brought to recover the same.

2. Various objections were taken in the written statement, but it is not necessary to refer to them in detail now.

3. The Subordinate Judge has dismissed the appeals preferred against the Munsif's judgment dismissing the plaintiff's suits, upon the ground that, as the plaintiff brought a share of the ousut taluk to sale, in execution of his decrees for arrears of rent, under Section 61 of Bengal Act VIII of 1869, and as under that section a share of a tenure could not be brought to sale, the plaintiff's purchase is invalid. The Subordinate Judge therefore dismissed the plaintiff's suit on the ground that by his purchase he has acquired no title to any share of the ousut taluk, and in support of his decision has referred to the two cases of Gobind Chunder Roy Chowdhry v. Ram Chunder Chowdhry 22 W.R. 421 and Reily v. Hur Chunder Ghose I.L.R. 9 Cal. 722. He has further relied upon the language of Section 64 of the Rent Act, which runs as follows: 'If a decree is given in favour of a sharer in a joint undivided estate, depended taluk, or other similar tenure, for money due to him on account of his share of the rent of an under-tenure situate in such undivided estate, taluk, or tenure, no order for the sale of such under-tenure in execution of such decree shall be made unless and until all moveable property (if any) which such judgment-debtor may possess within the jurisdiction of the Court in which the suit was instituted, shall have been seized and sold in execution of such decree, and the sale of such property if any, shall have proved insufficient to satisfy the [468] -judgment. In such case such under-tenure, if of the nature described in Section 59, may be seized and sold in execution of such decree, according to the ordinary procedure of the Court and not in the manner provided in the said section, and every such sale shall have such and the same effect as the sale of any immoveable property sold in execution of a decree not being for arrears of rent payable in respect thereof.'

4. In this case the plaintiff, after the sale was confirmed under the provisions of the Code of Civil Procedure, obtained a sale-certificate. According to that sale-certificate, he has a valid title as regards the share sold, against the judgment-debtor whose property, was sold. Although Section 64 speaks of the sale of the whole under-tenure, it does not appear to us to follow from it that the sale of a portion of an under-tenure would not be binding between the purchaser and the judgment-debtor, whose property is sold under that section. There is no question that if this sale had taken place under the provisions of the Code of Civil Procedure, and if no reference had been made to Section 64, the sale would have been valid. But we fail to see any substantial distinction between the sale of a portion of an under-tenure under the Code of Civil Procedure and under Section 64 of the Rent Act. In both oases the same formalities have to be gone through. It appears to us that there is nothing in the language of Section 64 which necessarily leads to the conclusion that under that section a share of an under-tenure could not be sold so as to render the sale binding upon the judgment-debtor. The cases cited do not support the view of the Subordinate Judge. In the case of Gobind Chunder Roy Chowdhry v. Ram Chunder Chowdhry 22 W.R. 421 the question at issue between the parties was whether the purchaser of a certain share of an under-tenure acquired such a right under his purchase as would entitle him to hold that share free from the payment of rent to the superior holder. The plaintiff in that case was the purchaser of a fractional share, and it is stated in the judgment that the defendant having obtained a decree against him (that is the plaintiff) for rent, the latter brought that suit in order to have it declared that he was not liable to pay any rent.

Couch, C.J.

5. In delivering the judgment of the Court, says: 'If a person chooses to purchase part of an under-tenure he must take his position as being jointly liable for the rent with the other under-tenants.' So what was decided in that case was not that the purchase was invalid as between the purchaser and the judgment-debtor, but that by his purchase the plaintiff was not entitled to hold the share purchased, rent-free.

6. In the case of Reily v. Hur Chunder Ghose I.L.R. 9 Cal. 722 it was decided that the purchaser of a share of a tenure does not acquire the property free from encumbrances. The words used are: 'It has been established by a number of decisions in this Court that a purchaser under Section 108, Act X of 1859, which corresponds to Section 64, Bengal Act VIII of 1869, acquires the judgment-debtor's rights and interests only.'

7. This case, far from being an authority in support of the view of the law taken by the Subordinate Judge, seems to us to lay down that a purchaser of a portion of a tenure acquires the judgment-debtor's rights and interests only. We are unable to agree with the Subordinate Judge that under the purchase mentioned in the plaint, the plaintiff has acquired no title in the ousut taluk. That being the sole ground of the decision of the lower Courts, we think that these cases must go back to the Munsif in order that all the other points arising in the cases may be disposed of.

8. We think it right to notice an objection that was taken on behalf of the respondent. It was urged that in this case the rent was payable not only to Thunda Bibi, whose rights and interests the plaintiff has purchased in the ousut taluk, but also to other persons not parties to the suit, that is to say, that the rent of the howla and nim-howla was payable to Thunda Bibi and her co-sharers in the ousut taluk. We find that an objection was taken in the written statement to this effect. With reference to the facts stated above the allegations in the plaint are not clear. In certain analogous cases the finding of the Subordinate Judge upon the evidence is that there was no separate payment of rent in respect of that share of Thunda Bibi which was sold, and in respect of the share of the same lady which was not sold. If that finding is correct, it would be in conflict with the statement made by the defendants in these cases. In their written statement they say that their share of rent was payable not only to Thunda Bibi but also to other persons, her co-sharers in the ousut taluk. This point will have to be gone into on remand, if it really arises between the parties. If the Court finds that there is no other co-sharer to whom the rent of the howla and nim-howla was payable, but that the entire rent was payable to Thunda Bibi, then the plaintiff's suit would not be liable to any objection. But it would be necessary to apportion the rent of the subordinate tenure between the purchaser and Thunda Bibi, and after apportionment of the rent, the plaintiff would be entitled to his proportionate share. But if the Munsif finds that the rent of the howla and nim-howla was payable not only to Thunda Bibi but also to other persons, then the cases would be open to the objection of defect of parties.

9. Costs will abide the result.


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