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Doorgadhur Biswas and ors. Vs. Huro Mohinee Dabee - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in1Ind.Cas.184
AppellantDoorgadhur Biswas and ors.
RespondentHuro Mohinee Dabee
Cases ReferredJeo Lal Singh v. Gunga Parshad
Excerpt:
sale in execution - registered tenant, money-decree against--effect of--whether whole tenure passes. - .....be interested in it. there was also and is now a second and wholly different procedure, viz., a sale in execution in the ordinary way under the code of civil procedure, and where such a sale takes place it is the ordinary law that in execution of a decree for rent as in execution of any other money decree the thing which passes to the purchaser is the interest of the person against whom the decree has been made and no more.2. if that were all, this would be sufficient to dispose of the present case, because it would follow that by the sale in execution of the decree in the name of sharitulla, the plaintiff had acquired nothing except the right, title and interest of sharitulla in the tenure. but the learned judge in the lower appellate court has adopted a view which, if accepted,.....
Judgment:

1. The plaintiff in this suit is the purchaser at an execution sale of a tenure or an interest in a tenure. The defendants are persons who prior to her purchase were sharers in the tenure. Their co-sharer Sharitulla was the registered tenant, that is to say, his name was registered in the zemindar's sherishta The suit for rent was brought against him alone by a person who had been ijaradar of the property at the time when the rent for which the suit was brought became due but whose ijara had expired when the suit was brought. He obtained a decree against Sharitulla and in execution of that decree he proceeded to sell the right, title and interest of the defendant Sharitulla in the tenure. The sale took place, the plaintiff became the purchaser and her sale-certificate indicated what she purchased as the right, title and interest of Sharitulla. The defendants, the co-sharers, are still in possession and the plaintiff brings this suit claiming to oust them from the tenure and to be put in possession of the whole tenure herself. From the time of the decision of the Privy Council in the case of Doolar Chand Sahoo v. Lala Chabeel Chand 1. L.R. 6 L A. 47; 3 C.L.R. 561 it has been clearly established law that in the case of tenures sold for arrears of rent there are two wholly distinct kinds of procedure. There was the procedure under the Rent Act of 1869. Those provisions have now been changed but under them there might be a sale of the tenure under sees. 59 and 60 and the following sections, and where that took place there is no doubt that the purchaser acquired, if only the suit were properly constituted, the whole of the tenure whoever might be interested in it. There was also and is now a second and wholly different procedure, viz., a sale in execution in the ordinary way under the Code of Civil Procedure, and where such a sale takes place it is the ordinary law that in execution of a decree for rent as in execution of any other money decree the thing which passes to the purchaser is the interest of the person against whom the decree has been made and no more.

2. If that were all, this would be sufficient to dispose of the present case, because it would follow that by the sale in execution of the decree in the name of Sharitulla, the plaintiff had acquired nothing except the right, title and interest of Sharitulla in the tenure. But the learned Judge in the lower Appellate Court has adopted a view which, if accepted, would qualify the effect of this latter rule very much indeed. He has held that under such circumstances as the present the registered owner is to be taken to represent his co-sharers in such a sense that proceedings against the registered owner are to be taken as in substance proceedings against his co-sharers also, and in such a sense that the sale of the interest of the registered owner carries with it the interest of his co-sharers. I think that view cannot be sustained. There have no doubt been certain classes of cases in which persons who had in fact representative capacity, that is to say, who had in fact the power to act on behalf of others, ordeal with the interest of others have been before the Courts, and in some of such cases it has been held that in construing proceedings against such persons they may, if the circumstances are such as to justify it, be treated as proceedings against them in their representative capacity, that is to say, proceedings against them as representing other parties so as to be binding upon those parties. And effect has been given to them accordingly. There have been instances of that in cases against guardians where it has been held that proceedings against the guardian as such may be construed as proceedings against him in his representative capacity and binding against the ward.

3. There have been cases in joint Mitakshara families where the circumstances were such that one of the members of the family had power to act for the other members of the family or to bind them by his acts, and it has sometimes been held that proceedings against such a member of the family may be construed as proceedings against him as representing his co-sharers as well as against himself. But that is a very different thing from holding as a proposition of law that where one of several tenants whose name is alone registered in the zemindar's sherishta is sued for rent he represents his co-sharers in such a sense that proceedings taken against his interest alone in execution can be construed as proceedings binding against all the others. To hold anything of that kind would be going far beyond what the strongest decided cases would warrant. The case of Jeo Lal Singh v. Gunga Parshad 10 C. 996 on which the learned Judge in the lower Appellate Court has relied was a case under the Mitakshara law, somewhat if not closely analogous to the class of cases I have mentioned. I am also disposed to think that the decision in that case goes beyond the other decided cases and I confess, I think, that if it came to be reconsidered it is not improbable that it might be held to have gone too far. But at any rate it is not an authority for the view which the lower Appellate Court has taken.

4. For the reasons I have stated I think that the decision of the lower Appellate Court is wrong, its decree will, therefore, be set aside and the decree of the Court of First Instance restored in so far as the present appellants are concerned with costs in all the Courts.


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