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Mohendralal Sinha Vs. Sreemutty Krishna Kumari Debi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in46Ind.Cas.656
AppellantMohendralal Sinha
RespondentSreemutty Krishna Kumari Debi and ors.
Excerpt:
transfer of properly act (iv of 1882), section 108(j) - lease of home stead, whether transferable. - .....rent of a homestead. that rent is due is admitted. the first two defendants are stated to be the original tenants. the defendants nos. 3 and 4 are purchasers from the original tenants, the property having been sold to them in order to enable the original tenants to pay off a mortgage, so it is stated by the munsif, due to the plaintiff. it is said that the holding is not capable of transfer, there is nothing to support that on the record. there is nothing to show that this was an interest in existence prior to the coming into operation of the transfer of property act. if the case is governed by the transfer of property act, the interest is clearly transferable. i do not think that in a case like this we ought to send back the case to be re-heard de novo on the ground that the plaintiff.....
Judgment:

Fletcher, J.

1. This is an appeal by the plaintiff against the judgment of the learned Subordinate Judge of Burdwan affirming the decision of the Munsif of the same place, The suit was brought for rent of a homestead. That rent is due is admitted. The first two defendants are stated to be the original tenants. The defendants Nos. 3 and 4 are purchasers from the original tenants, the property having been sold to them in order to enable the original tenants to pay off a mortgage, so it is stated by the Munsif, due to the plaintiff. It is said that the holding is not capable of transfer, There is nothing to support that on the record. There is nothing to show that this was an interest in existence prior to the coming into operation of the Transfer of Property Act. If the case is governed by the Transfer of Property Act, the interest is clearly transferable. I do not think that in a case like this we ought to send back the case to be re-heard de novo on the ground that the plaintiff wants to put in some further evidence, to enable him no doubt to eject these people who have purchased the property on furnishing money to pay off the mortgage. I do not think that the plaintiff ought to be allowed now to put in further evidence. He ought to have proved in the first Court that the interest came into existence before the date of the Transfer of Property Act. The appeal fails and is dismissed with costs.

Smither, J.

2. I agree.


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