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ShukuruddIn Chowdhury Vs. Rani Hemangini Debi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in13Ind.Cas.192
AppellantShukuruddIn Chowdhury
RespondentRani Hemangini Debi and ors.
Cases ReferredDwarka Nath v. Tarini Sankar
Excerpt:
landlord and tenant - non-tranaferable occupancy-holding--sale in execution with consent of co-sharer landlord--consent after sale, of non-consenting landlord. - .....it has also been held that the landlord may consent even after the sale; see dwarka nath v. tarini sankar 11 c.w.n. 513 : 5 c.l.j. 294 : 34 c. 199. so that here the non-consenting landlords may give their consent after the sale. in any case the decree-holder takes the risk and in the present state of the law the purchaser will purchase at his peril. we do not think it necessary to interfere and we accordingly dismiss this appeal but without costs.
Judgment:

1. The decree-holder applied for the sale of a non-transferable occupancy-holding in execution of a money-decree on the allegation that the landlords had given their consent. The raiyat judgment-debtor objected and the learned Munsif found that the consent was not by all the landlords but by co-sharers to the extent of 15 1/4 annas only and made an order for the sale of that share of the holding. That order has been affirmed by the lower Appellate Court.

2. It has been held that an occupancy-holding which is not transferable by custom can be sold with the consent of the landlord. See Ananda Das v. Ratnakar 7 C.W.N. 572. That consent, however, must be by the whole body of landlords. It is contended that the result of the order of the lower Courts would be a sale of a part of a holding and a consequent sub-division of the holding1 without the consent of the whole body of landlords. As regards the sale of a part of a holding there is some diversity of opinion and the matter has been referred to a Full Bench in another case, As regards the sub-division of the holding, that would not be a necessary consequence of the sale and the non-consenting landlords would not be bound to recognize the sub-division. It has also been held that the landlord may consent even after the sale; see Dwarka Nath v. Tarini Sankar 11 C.W.N. 513 : 5 C.L.J. 294 : 34 C. 199. So that here the non-consenting landlords may give their consent after the sale. In any case the decree-holder takes the risk and in the present state of the law the purchaser will purchase at his peril. We do not think it necessary to interfere and we accordingly dismiss this appeal but without costs.


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