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Abdul Karim Mean Vs. Miajan Mianji and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in32Ind.Cas.232
AppellantAbdul Karim Mean
RespondentMiajan Mianji and anr.
Excerpt:
bengal tenancy act (viii of 1885), section 86 - surrender of portion of joint holding, whether valid--surrender, when operating as transfer. - .....to him by defendant no. 4, who was one of the tenants who held the tenure which comprised the land in suit. the court of first instance gave the plaintiff a decree, but on appeal that decree has been reversed and the main ground upon which the lower appellate court has dismissed the suit is that the tenancy of ahmad ali and his co-sharers being a joint one there could not be a valid surrender of a portion of the holding by one of the tenants. it appears, however, that there was division of the land of the holding as between themselves and that division was binding upon them, although not binding upon the landlord. ahmad ali used to pay his share of the rent to the landlord and being unable to pay the arrears of rent, he executed a registered document in favour of the landlord.....
Judgment:

1. The plaintiff-appellant sued to recover possession of the land in dispute, on the ground that it had been surrendered to him by defendant No. 4, who was one of the tenants who held the tenure which comprised the land in suit. The Court of first instance gave the plaintiff a decree, but on appeal that decree has been reversed and the main ground upon which the lower Appellate Court has dismissed the suit is that the tenancy of Ahmad Ali and his co-sharers being a joint one there could not be a valid surrender of a portion of the holding by one of the tenants. It appears, however, that there was division of the land of the holding as between themselves and that division was binding upon them, although not binding upon the landlord. Ahmad Ali used to pay his share of the rent to the landlord and being unable to pay the arrears of rent, he executed a registered document in favour of the landlord transferring his interest in the holding. Even if there could be no valid surrender, we think the deed operated to pass his interest in the holding in favour of the landlord. It was stamped as a conveyance and registered and in substance it was a conveyance of the interest of Ahmad Ali. We think, therefore, that if Ahmad Ali had any subsisting interest in the holding at the date of the deed, it was transferred to the plaintiff landlord. It is contended, however on behalf of the respondents that the lower Appellate Court has not come to any finding as to whether Ahmad Ali had any subsisting interest at the date of the deed. The case will, therefore, go back to that Court in order that it may find on the evidence whether Ahmad Ali had any subsisting right to the land in suit at the date when he executed the document. If the question is decided in the affirmative the decree of the Munsif will be confirmed, if in the negative the suit will be dismissed.

2. The costs of this appeal will abide the result.


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