1. This appeal is by the plaintiffs. The property originally belonged to one Ashutosh Sarkar. It was sold by his widow Jashoda to the father of defendants 10 to 15. The subordinate Judge, differing from the Munsiff, has found that the sale was justified by legal necessity. The document however was not registered. The subordinate Judge, again, differing from the Munsiff, held that defendants 10 to 15 are protected by Section 53-A, T. P. Act. The plaintiffs rely on a later sale by Ashutosh Sarkar's daughter Sudhamoni, pro forma defendant 16 to plaintiff 2. Damages were claimed against defendants 1 to 9 for the removal of certain goods from the property. This claim was dismissed by the Munsif and has now been abandoned, The case however is pressed against defendants 10 to 15 for a declaration of the plaintiff's title and recovery of possession. Two points have been pressed in support of the appeal: (1) that defendants 10 to 15 are not protected by Section 53-A, T. P. Act and (2) that the subordinate Judge has not dealt with the question of legal necessity in a satisfactory manner. The sale by the widow to the father of defendants 10 to 15 took place before the enactment of Section 53-A, T. P. Act. It was contended that that section has no retrospective effect and that therefore it is of no avail to the respondents in the present suit.
2. So far as this Court is concerned, that, question is concluded by a decision of a Division Bench in Mahammed Hushen v. Jamini Nath Bhattacharji : AIR1938Cal97 . That decision is binding upon me. It is true that a contrary view was taken by Jack J. in Mohendra Narayan Roy v. Prafulla Kumar : AIR1938Cal795 . It appears that the attention of the learned Judge was not drawn to the earlier decision. That decision being a decision of a Division Bench was binding upon him and no effect can be given to his dissentient view. It is also true that a different view has been taken by the Patna High Court, Jagdamba Prasad v. Anadi Nath Roy ('38) 25 AIR 1938 Pat 337 and the Madras High Court, Kanji and Moolji Brothers v, T. Shanmugam Pillai ('32) 19 AIR 1932 Mad 734. I was pressed to accept that view. Now, cases in which the point can arise will become less and less with the passage of time. I am therefore not prepared to send this case to a Division Bench on a mere chance that it might be referred to a Full Bench. I prefer to follow the decision which is binding upon me sitting alone.' Then, in the second place, it was contended] that Section 53-A has no application because the plaintiffs do not claim under the widow. Here, again, the Courts below have differed. The learned subordinate Judge said this:
The contention would be correct apart from legal necessity. But I am not prepared to hold so upon proof of legal necessity. Upon proof of legal necessity the transfer would bind the reversioner, and as such the reversioner would be treated as claiming under the transferor.
3. The learned Munsif said this:
It is contended that the widow having sold for legal necessity may be said to have represented her husband then. Had she represented her husband there would have been no necessity to sell for legal necessity.
4. If the property were legally conveyed to the predecessor of defendants 10 to 15 for legal necessity, the plaintiffs would have no title at all. If such a conveyance covered only a part of the property, it would not possibly be said that the plaintiffs claimed the balance under the widow. The relevant words in Section 53-A are as follows:
The transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession.
5. If a defendant claims the benefit of this section, he must bring himself within its terms. It appears to me to be quite irrelevant that in certain circumstances the widow may dispose of the property. In order to be within the terms of the section defendants 10 to 15 must show that the plaintiffs are claiming under the widow. Admittedly, they are not. I therefore agree with the conclusion of the learned Munsif. There remains the question of legal necessity. The subordinate Judge found that the money was required to pay off debts incurred for maintenance owing to the failure of crops and for medical treatment. The criticism made is that his judgment does not deal with the question properly and that there should be a remand. It cannot be denied that the judgment is not happily expressed. For example one reason given by the learned Judge for holding that these debts really existed was that the transferee was her husband's sister's son who had been brought up in the family. I cannot conceive how the personality of the transferee can throw any light on the question whether the debts were real or fictitious. The main criticism however of this part of the judgment was that the learned Judge does not say that he believes the witnesses who were called to prove the existence of these debts. He certainly does not say so in so many words; but by implication he must have meant it or his judgment would be quite unintelligible. He remanded the case in order that the issue regarding legal necessity might be tried out. On the remand the respondents examined witnesses to prove that these debts really existed and that they were not fictitious. The learned Judge refers to these depositions as a ground for finding the existence of legal necessity. The only conclusion is that he must have believed them or his decision could not have been arrived at.
6. The result is that I am satisfied that the learned subordinate Judge in the judgment, unsatisfactory though it is in some respects, did intend to find that these debts really existed. The result is that the appeal is allowed. The decree of the lower appellate Court is set aside and that of the Munsif restored. Defendants 10 to 15 will pay the costs of the appellants in this Court and in the lower appellate Court. Leave to appeal under Clause 15, Letters Patent, is granted.