1. The plaintiff is the appellant in 1313 B.S. he lent Rs. 100 to the predecessor of the defendants Nos. 1, 2 and 3 and the latter executed a mortgage bond hypothecating the Jamai land now in suit and some other land. The present defendants sold the Jamai lands to defendant No. 4, who paid the plaintiff Rs. 100 out of the amount due to him. The suit is for the balance due on the bond. After defendant No. 4's purchase the landlord sued the tenants for rent, and obtained a decree. In execution of that decree the jote was put up for sale and bought by defendant No. 5. The lower Appellate Court finds that this purchase was on behalf of the landlord, and that, the landlord afterwards settled the land with defendant No. 6.
2. The first Court decreed the plaintiff's suit, but on appeal by defendant No. 6 that decision was reversed so far as it related to the Jamai lands.
3. It is to be noted that the mortgage covered about two-thirds of the jote, not the entire area.
4. For the plaintiff it is urged that the sale for arrears of rent did not affect his rights as mortgagee, because the sale proclamation was issued under Section 163(2)(a), that even if the proclamation be treated as one tinder Clause (b) the sale was not followed by action under Section 167, that inasmuch as the mortgage was of a part only of the jote the question of transferability does not arise, and that the lower Appellate Court was wrong in abstaining from a decision as to whether defendant No. 6 is a benamdar for defendant No. 4, because the latter as purchaser from the successors of the original mortgagor cannot question the mortgagee's rights.
5. In view of the Munsif's finding on the last point, it is to be regretted that the Appellate Court did not come to a conclusion, but I think that the appeal can be decided on the findings recorded.
6. The first argument noticed above does not seem to have any substance in it. A printed form was used for the sale proclamation, and it is headed Section 163(2)(a). No one, however, suggests that the holding was either a tenure or the holding of a raiyat holding at fixed rates, and it follows that the form ought to have been one under Section 163(2)(b). In the circumstances of the cafe no one was misled by the wrong form being used, and I think no importance ought to be attached to the mistake.
7. Even so, the appellant urges, action ought to have been taken under Section 167 by the purchaser, and as no action was taken under that section, the plaintiff can enforce his mortgage lien against the portion of the note that was hypothecated. Here the respondent-defendant No. 6 raises the objection that his possession is by virtue of a settlement from the landlord, and his interest cannot be assailed without making the landlord a party. The appellant's answer to this objection is that he is not seeking any relief against the landlord. I think it is unfortunate that the plaintiff has not made the landlord a party, but I cannot hold that the suit cannot proceed without the landlord. The decree will not bind the landlord, and defendant No. 6 may at another stage have an opportunity of taking shelter under his settlement from the landlord.
8. As for the decision of the lower Appellate Court regarding the mortgage of a non-transferable holding, the learned Subordinate Judge's judgment was written before the Pull Bench decision in Dayamoyi v. Ananda Mohan Roy 27 IND. Cas. 61 : 42 C. 172 at p. 228 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.) and it is not necessary to discuss his reasoning.
9. I agree with my learned brother that the appeal should be allowed, and the decree of the first Court restored with costs in all Courts.
10. This is an appeal by the plaintiff from a decision of the Subordinate Judge of Burdwan, reversing a decision in his favour of the Munsif of Kalna. The material facts are shortly as follows: One Juran Sheikh in the month of Sravan 1313 executed in favour of the plaintiff a mort gage bond to secure a sum of Rs. 2,100 and thereby mortgaged to the plaintiff to secure the principal and interest due on the bond a portion of his non-transferable occupancy holding, which he held under one Srimati Priyambada Debi. The plaintiff alleges in his plaint that the bond was registered, but there is no finding on this point or as to whether the incumbrance was notified to the landlord, but no point was made as to this. Juran Sheikh died leaving as his heirs defendants Nos. 1, 2 and 3, who sold (inter alia) the mortgaged premises to defendant No. 4. The landlord obtained a rent decree' against defendant No. 4, and in execution thereof the lands were sold and purchased by the landlord in the benami name of defendant No. 5, and were settled with defendant No. 6. The real question that arises on this appeal is whether as a result of the sale the plaintiff's rights under his mortgage have been extinguished or are still subsisting. The Munsif, as already stated, decided in the plaintiff's favour and held that the incumbrance was not affected by the sale in execution of the rent decree but the Subordinate Judge held that the mortgage being a transfer was not binding on the landlord as the holding was an occupancy holding and not transferable. Three points are raised on appeal. First, it is said that the sale was under the provisions of Section 163(2)(a) of the Bengal Tenancy Act and that, therefore, the sale was subject to the mortgage, secondly, it is said that even if the sale was under the provisions of Section 163(2)(6) of the Act, the mortgage is an incumbrance and is still subsisting as it has never been annulled under Section 167 and thirdly, it is said that there is no finding as to whether defendant No. 6 is a benamdar for defendant No. 4.
2. So far as the first point is concerned, it appears that the proclamation was upon a printed form headed Section 163(2)(a) and it was stated therein that there was no incumbrance on the property to be sold. In the view I take of this appeal it is not necessary for us to decide if this ground of appeal is well founded, and I will for the purposes of this judgment assume in favour of the respondent that the sale was in fact, although not in name, a sale under Section 163(2)(6). But assuming this point in the defendant's favour, I think that the appellant is entitled to succeed upon the second ground. The mortgage wag a transfer of a part only of the holding and not by way of sale and did not entitle the landlord to possession [Dayamoyi v. Ananda Mohan Roy 27 IND. Cas. 61 : 42 C. 172 at p. 228 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.), proposition 2,] and the mortgage was therefore, an incumbrance within Section 161 of the Bengal Tenancy Act, although liable to be annulled by a purchaser at a sale for arrears of rent [Jog Narain Singh v. Badri Das 13 Ind. Cas. 144 : 16 C.L.J. 156], and it could not be ignored by the landlord. That a sale under Section 163(2)(6) does not ipso facto cancel incumbrances and that a notice must be given under Section 167 see Beni Prosad Sinha v. Rewat Lall 24 C. 746 : 12 Ind. Dec. (N.s) 1165 and Kalikananda Mukherjee v. Bipro Das Pal Choudhuri 26 Ind. Cas. 436 : 21 C.L.J. 265 : 19 C.W.N. 18, the procedure provided by Section 167 being the only mode of annulling an incumbrance [Soshi Bhusan Guha v. Gogan Chunder Shaha 22 C. 364 : 11 Ind. Dec. (N.S.) 244 and Section 166(2) of the Bengal Tenancy Act]. It follows, I think, from these authorities that the sale by the landlord in execution of his rent decree was subject to the mortgage, but with the right in the purchaser (in this case the landlord) to annul the mortgage within one year. This the landlord as purchaser has not done and consequently I think that the defendant No. 6 took the land in settlement subject to the mortgage which is, I think, still subsisting. It is not necessary for me to deal with the 3rd ground of appeal in view of what is stated above, but if I had been against the appellant on his 2nd ground of appeal, I should, I think, have felt bound to send the case back for a finding on the 3rd ground. I do not understand the reasons of the Subordinate Judge in not coming to a finding on the 2nd issue; the fact that defendant No. 4 is not the original mortgagor makes no difference, for a purchaser of the mortgagor's share stands, so far as the land is concerned, exactly in the same position as if he was the original mortgagor, and if in fact he is, as is alleged, the real owner and defendant No. 6 only his benamdar, he could not, I think, any more than the original mortgagor, have repudiated the mortgage, but I am not deciding this.
3. It is urged on behalf of the respondent that the landlord is a necessary party to the suit, and that the suit must fail on this account. I think it would have been better that he should have been made a party to avoid any possible future litigation as in his absence this decision cannot, of course, bind him; but I do not think that he was a necessary party to the suit as he is not a person having an interest in the mortgage security or in the right of redemption within Order XXXIV, Rule 1, of the Code of Civil Procedure. Moreover, I do not think that qua landlord his interest is in any way affected. When the rent was in arrear he sold the holding subject to the mortgage, but with the power in the purchaser to annul the mortgage, that is to say, his position qua landlord was not affected by the mortgage, and if any one other than himself had been the purchaser, I do not think, although I am not deciding this, that at any future rent sale his right qua landlord would have been affected by the mortgage. Whether the fact that he, qua purchaser, failed to annul the incumbrance has affected his rights qua landlord may have to be decided hereafter, if at the time of any future rent sale the incumbrance is still undischarged All that this judgment decides is that as the present tenant derived title from him as purchaser at the rent sale and as he as such purchaser did not annul the incumbrance, the incumbrance is still subsisting.
4. In the result the appeal succeeds and must be decreed with costs in all Courts and the decree of the Munsif is restored.