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Fazlar Rahim Vs. Khorsed Alam and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Limitation
CourtKolkata
Decided On
Reported inAIR1941Cal333
AppellantFazlar Rahim
RespondentKhorsed Alam and ors.
Excerpt:
- .....provides that when a tenure or holding is sold in execution of a certificate for arrears of rent the tenure or holding will pass. but the sub-section obviously presupposes that there has been a sale of the entire interest of all the tenants of the tenure or holding. it merely provides that when the tenure or holding is sold in execution of a certificate for arrears of rent interests created by the tenants unless these are protected interests are destroyed. it does not and cannot mean that the interest of a tenant of the holding or tenure who is neither a certificate debtor nor represented by a certificated debtor can be sold in execution of a certificate. the words used are 'where a tenure or holding is sold.' this means that there must be a proper sale of the entire interests in.....
Judgment:

Sen, J.

1. This appeal is by defendant 1. A Noabad jote was sold on 7 th March 1935 for arrears of rent. The sale was held under the Public Demands Recovery Act for the realization of an amount due under a certificate issued against defendants 3 to 7. The Secretary of State for India in Council who is defendant 2 purchased the jote for 3 pies and settled it on 28th February 1936 with defendant 1, Fazlur Rahim. The jote belonged originally to five persons who died some eleven years ago; the five defendants 3 to 7 are the eldest sons of these five persons. The plaintiffs, it is now admitted, are also the heirs of these five persons and inherited an 11 annas 7 2/11 pies share in the jote. The plaintiffs sue for a declaration of their title to an 11 annas 7 2/11 pies share in the jote and for confirmation of their possession therein on the ground that their share has not been affected by the sale. The trial Court dismissed the suit. On appeal the decision of the trial Court was set aside and the suit was decreed. It will not be necessary to consider all the points relied upon by the parties in the Courts below for their respective cases as some of them are concluded by finding of fact and some have been abandoned. The points which require consideration in this appeal and which were pressed in this Court are these:

The property was put up for sale on a certain date for the amount due under the certificate. A proper price was not fetched and the certificate officer directed a fresh sale. In the fresh sale proclamation the property was advertised for sale not only for the amount of the certificate but also for the arrears of two subsequent years for which no certificate had been issued. The property was sold pursuant to this proclamation. The plaintiffs' contention is that this amounted to an illegality which vitiated the sale. The trial Court held that this was a mere irregularity which did not affect the validity of the sale while the lower appellate Court held in favour of the plaintiffs' contention. I am inclined to agree with the view of the lower appellate Court. The property could only be sold for the sum due under the certificate. The sale of the property for amounts for which no certificate was issued is in my opinion illegal. It was contended by the appellant that this point was not taken in the plaint and that therefore it should not be considered. The facts are admitted and the question is one of pure law. It was raised in the Court of first instance and considered by that Court as well as by the lower appellate Court and I can see no objection to allowing it to be raised here.

2. The next point which was relied on by the plaintiffs is that whether the sale be valid or not the plaintiffs' interest in the property is not affected by it in as much as they were not parties to the certificate proceedings. The learned Munsif in dealing with this point said that it appeared that defendants 3 to 7 were recorded in the rent roll as the tenants of this jote and that the plaintiffs did not have their names entered there. Next he pointed out that the rent was paid by defendant 3 and that the plaintiffs held him out to be their representative. For these reasons he held that the plaintiffs would be bound by the sale. He relied on the provisions of Section 146A, Bengal Tenancy Act, saying that although the section had not been extended to certificate cases nevertheless it would apply as it codifies the 'general law on the subject of representation of tenancies.' The lower appellate Court expresses the view that the provisions of Section 146A, Ben. Ten. Act, should not be extended to certificate cases because such extension would negative the provisions of Section 20 (1), Public Demands Recovery Act. The learned subordinate Judge also held that the evidence did not establish that defendants 3 to 7 were the only tenants whose names were recorded in the rent roll and that it was impossible to say in the absence of the landlords' rent roll in whose names defendant 3 paid the rent; I am of opinion that the provisions of Section 146A, Ben. Ten. Act, do not apply to certificate sales. I cannot agree with the view of the learned Munsif that Section 146A codifies the general law regarding representation. It is a section with very special provisions in a particular Act which has a limited scope and its application must be confined to cases coming under that Act. The question whether defendants 3 to 7 represented the entire interest of the tenants for the purposes of the Public Demands Recovery Act must be decided under the general law without reference to Section 146A, Ben. Ten. Act. Assuming that defendants 3 to 7 are the only persons whose names appear in the rent roll it does not follow from this that they represent the entire tenancy right. Again the mere fact that defendant 3 alone paid the rent would not by itself justify the landlord in concluding that he represents the entire tenancy right nor would it make defendant 3 the representative of all the tenants for all purposes. The trial Court fell into error in calling in aid the provisions of Section 146A, Ben. Ten. Act.

3. Although I agree with the learned subordinate Judge that S.146A has no application to sales held under the Public Demands Recovery Act nevertheless I am unable to agree with the reasons given by him, viz., that the section is inapplicable because it is repugnant to the provisions of S.20 (1), Public Demands Recovery Act. Section 20 (1) says that when the property is sold in execution of a certificate there shall vest in the purchaser merely the right, title and interest of the certificate debtor at the time of the sale. The learned Judge seems to think that this sub-section prevents the doctrine of representation from being applied in cases under the Public Demands Recovery Act inasmuch as the sub-section expressly states that nothing but the interest of the certificate debtor can pass under the sale in execution of a certificate. The learned Judge, however, has omitted to notice Sub-section (3) which says that in areas in which Chap. 14, Ben. Ten. Act, is in force when a tenure or holding is sold in execution of a certificate for arrears of rent due in respect thereof the tenure or holding shall pass to the purchaser notwithstanding the provisions of Sub-section (1). In a proper case therefore the interest of persons other than the certificate debtor may pass under the sale. In the present case, however, I can see no reason to hold that the interest of the plaintiffs has passed by this sale. Even if the findings of fact of the trial Court be accepted, viz., that defendants 3 to 7 are the only persons whose names are recorded in the landlord's rent roll and that defendant 3 alone paid the rents, this would not mean that defendants 3 to 7 represented the plaintiffs' interest. Further the lower appellate Court has found as a fact that there is no good evidence to prove that the rent roll contained only the names of defendants 3 to 7 or that defendant 3 paid rent on behalf of the plaintiffs. These are findings of fact which cannot be disturbed and they negative the case that the plaintiffs' interest was represented by defendants 3 to 7.

4. Next it was argued by learned advocate-for the appellant that whether the plaintiffs-were represented or not the sale being one in execution of a certificate for arrears of rent the entire jote passed by reason of the provisions of Section 20 (3). It is true that the sub-section provides that when a tenure or holding is sold in execution of a certificate for arrears of rent the tenure or holding will pass. But the sub-section obviously presupposes that there has been a sale of the entire interest of all the tenants of the tenure or holding. It merely provides that when the tenure or holding is sold in execution of a certificate for arrears of rent interests created by the tenants unless these are protected interests are destroyed. It does not and cannot mean that the interest of a tenant of the holding or tenure who is neither a certificate debtor nor represented by a certificated debtor can be sold in execution of a certificate. The words used are 'where a tenure or holding is sold.' This means that there must be a proper sale of the entire interests in the tenure or holding in accordance with the provisions of law. The sale of the interest of some of the tenants of the holding is not the sale of the tenure or holding nor is there any provision in the Act which authorises the sale of a tenure or holding where some of the tenants are neither certificate debtors nor represented by the certificate debtors. I hold that this contention on behalf of the appellant cannot prevail.

5. Next it was argued on behalf of the appellant that the suit was barred as it has been brought more than one year after the sale. My attention was drawn to Article 12, Limitation Act, which it was contended applied to this suit. In my opinion, this article has no application to this suit. The article provides the period of limitation for a suit to set aside a sale. This is not a suit to set aside a sale but a suit for a declaration that the plaintiffs' interest in the holding has not been affected by the sale. The article would have applied if this suit had been brought by a certificate debtor to set aside the sale but the plaintiffs are not certificate debtors and there is no need for the plaintiffs to have the sale set aside. In my opinion the decision of the lower appellate Court must be upheld and this appeal must be dismissed with costs.


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