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Mohammed Soleman Vs. Raghu Nath Dutta - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in39Ind.Cas.387
AppellantMohammed Soleman
RespondentRaghu Nath Dutta
Excerpt:
bengal municipal act (iii b.c. of 1884), section 361 - sale of unclaimed holding--purchaser, rights of. - .....361 of the mofussil municipal act. that section authorises the municipal commissioners to sell a holding in arrears under certain circumstances and provides that any person may pay the amount due at any time before the completion of the sale and may recover such amount by a suit in a court of competent jurisdiction from any person beneficially interested in such property. there is, within the four corners of the act, no provision for creating any charge on the property for arrears of rates and we do not think that any such charge can be presumed from the mere fact that the holding is directed to be sold. when the sale is under a statute, the rights of the purchaser must be governed by the statute and here the statute does not create any charge or other preferential right in favour of.....
Judgment:

1. In this case a certain holding in the Manictola Municipality belonged to one Chand Bibi. Chand Bibi in 1910 sold it to one Asutosh Dey, who in August 1911 sold it to defendant No. 1. On the same date defendant No. 1 mortgaged the holding to a certain person who again assigned his mortgage-rights to the plaintiff in 1912. In 1914 this holding was sold by the Manictola Municipality for arrears of rates due from September 1910 for ten quarters and the property was purchased by defendant No. 2 in 1915. Upon the present suit being brought on the mortgage in 1912 by the plaintiff, defendant No. 2 contends that he has purchased the holding devoid of all encumbrances and that the plaintiff is not entitled to sell the same. The title of defendant No. 2 is derived under a sale under Section 361 of the Mofussil Municipal Act. That section authorises the Municipal Commissioners to sell a holding in arrears under certain circumstances and provides that any person may pay the amount due at any time before the completion of the sale and may recover such amount by a suit in a Court of competent jurisdiction from any person beneficially interested in such property. There is, within the four corners of the Act, no provision for creating any charge on the property for arrears of rates and we do not think that any such charge can be presumed from the mere fact that the holding is directed to be sold. When the sale is under a Statute, the rights of the purchaser must be governed by the Statute and here the Statute does not create any charge or other preferential right in favour of the purchaser. Defendant No. 2, therefore, is not entitled to claim any priority over the plaintiff whose mortgage is clearly before his purchase.

2. This appeal is dismissed with costs.


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