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Kanchan Mandar and ors. Vs. Kamala Prosad Chowdhury and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in29Ind.Cas.734
AppellantKanchan Mandar and ors.
RespondentKamala Prosad Chowdhury and anr.
Cases ReferredDilbar Sardar v. Hosein Ali Bepari
Excerpt:
fraudulent transfer - estoppel, principle of--duty to speak--purchaser at execution sale, if can question transferability--auction-purchaser equally bound with judgment-debtor--co-sharer landlord, power of, to raise question of transferability--non-transferable occupancy holding, sale of, effect of. - .....sued to enforce their security, obtained a decree thereon, and took steps to bring the holding to salein execution. on the 17th february 1908, the mandars transferred the holding to the plaintiffs under a conveyance for rs. 1020 which was paid into court in satisfaction of the mortgage-decree held by the defendants. the defendants had, prior to these proceedings, instituted a suit against the mandars for arrears of rent payable in respect of their three-fourths share. an ex parte decre was at first obtained and was subsequently set aside; finally, on the 20th february 1908, a decree for rent, which could operate only as a decree for money, was made in favour of the defendants. on the 16th june 1908, the defendants in execution of that decree purchased the right, title and interest of.....
Judgment:

1. The subject-matter of the litigation which has culminated in this appeal is an agricultural holding owned by the members of a family of Mandars under the plaintiffs and the defendants as their landlords. The plaintiffs are interested to the extent of a fourth share and the defendants to the extent of a three-fourths share in the superior interest. The Mandars had mortgaged the holding to the defendants who sued to enforce their security, obtained a decree thereon, and took steps to bring the holding to salein execution. On the 17th February 1908, the Mandars transferred the holding to the plaintiffs under a conveyance for Rs. 1020 which was paid into Court in satisfaction of the mortgage-decree held by the defendants. The defendants had, prior to these proceedings, instituted a suit against the Mandars for arrears of rent payable in respect of their three-fourths share. An ex parte decre was at first obtained and was subsequently set aside; finally, on the 20th February 1908, a decree for rent, which could operate only as a decree for money, was made in favour of the defendants. On the 16th June 1908, the defendants in execution of that decree purchased the right, title and interest of the Mandars in the holding in dispute. They obainted delivery of possession through Court and thus dispossessed the plaintiffs. On the 29th July 1910, the plaintiffs instituted the present suit for declaration of their title by purchase and for recovery of possession. The defendants contended that the holding was non-transferable and that the plaintiffs had consequently acquired no title under their purchase. The Subordinate Judge has not allowed evidence to be given upon the question of the existence of a custom of transferability of occupancy holdings in the locality, on the authority of the decision in Haro Chandra Poddar v. Umesh Chandra Bhattacharjee (1) He has found on the merits in favour of the plaintiffs and has made a decree for possession and for determination of mesne profits.

2. In the present appeal by the defendants, the decree of the Subordinate Judge has been assailed substantially on four grounds; namely, first, that the conveyance by the Mandars in favour of the plaintiffs was fraudulent and did not pass title to them; secondly, that the plaintiffs are estopped to deny the validity of the title of the defendants, as with full knowledge of the rent decree and of the execution proceedings thereon they did not raise any objection; thirdly, that the defendants in their character as purchasers at an execution sale were entitled to raise the question of transferability of the holding; and, fourthly, that the defendants in their character as co-sharer landlords were entitled to resist the claim of the plaintiffs to the extent of a three-fourths share.

3. In support of the first ground, it has been contended that at the time when, the conveyance was executed by the Mandars in favour of the plaintiffs on the 17th February 1908, the transferors as well as the transferees were aware of the pendency of the suit for arrears of rent, and that the transfer was consequently a device to defeat the claim of the defendants as landlords. There is clearly no foundation for this contention. There is nothing to show that the transferors intended the sale as a cloak or device for their own protection; and on the principle explained by this Court in the case of Hakim Lal v. Mooshahar Sahu 34 C. 999 : 6 C.L.J. 410 : 11 C.W.N. 889 the transfer cannot be impeached as fraudulent. The bona fides of the transfer cannot be doubted, because during the pendency of the execution proceedings on the basis of the mortgage, the transferors intimated to the Court that they intended to satisfy the mortgage-decree by sale of some of their properties, though they did not specify the particular properties they intended to sell. There was a valid decree against them, and the sale for consideration corrected in these circumstances cannot be deemed fraudulent. The first ground thus fails.

4. In support of the second ground, it has been urged that the transferors and the transferees were both aware of the rent suit, that it was their duty to intimate to the Court that the property which the defendants sought to bring to sale in execution of their decree for rent had already been transferred by the conveyance of the 17th February 1908 and that their omission to do so estopped them now, on the principle recognised in Pickard v. Sears (1837) 6 A. and E.469 : 2 N. & P. 488 : 45 R.R. H 538 : 112 E.R. 179. That case has plainly no application here. It is well settled that where a person, by his words or conduct, wifully causes another to believe the existence of a certain state of things and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter that a different state of things existed at the time. But this principle has no application where the person against whom the estoppel is sought to be applied is under no duty to speak. Here, it has not been established that the plaintiffs were under any duty to speak and that by reason of their failure to warn the defendants, the position of the latter has been altered. The second ground consequently cannot be sustained.

5. In support of the third ground, it has been argued that the defendants in their character as purchasers at an execution sale were entitled to raise the question of transferability of the holding. This contention cannot possibly be supported in view of the principle laid down by the Full Bench in Dayamoyi v. Ananda Mohan Roy 27 Ind. Cas. 61 : 20 C.L.J. 52 : 18 C.W.N. 971. As between the plaintiffs and their transferors, no question of transferability could be raised, because the transferors were bound by the doctrine of estoppel not to question the title of their transferees. As between the transferors of the plaintiffs and the defendants, their was no estoppel, because the defendants were purchasers at an execution sale. It was, accordingly, open to the Mandars to impeach the title of the defendants after the sale or to take objection before the sale if they had timely intimation of the execution proceedings. But that stage has been passed and the Mandars have not objected to the validity of the execution sale. Consequently, as between the Mandars and the defendants, it must be held that the defendants are the purchasers of the right, title and interest of their judgment-debtors, and are bound by the same estoppel as binds their judgment-debtors. Upon this question, there has been some fluctuation of judicial opinion, but, as was explained in the case of Debendra Nath Sen v. Mirza Abdul Samed 5 Ind. Cas. 264 : 10 C.L.J. 150, upon a review of the authorities, it is now well-settled that a purchaser at an execution sale is bound by the same rule of estoppel as the judgment-debtor, on the principle that the former has purchased merely the right, title and interest of the latter and does not consequently occupy a position of greater advantage. This view is supported by the decision of the Judicial Committee in Mahomed Mozuffer Hossein v. Kishori Mohun Roy 22 C. 909 : 22 I.A. 129 The inference follows that the defendants, viewed in their character as purchasers of the right, title and interest of the Mandars, are not entitled to raise the question of transferability of the disputed holding. The third ground accordingly fails.

6. In support of the fourth ground, it has been urged that the defendants, in their character of co-sharers in the superior interest to the extent of a three-fourths share, are entitled to raise the question of transferability of the holding. This contention is clearly well-founded on principle and is supported by the decision in Dilbar Sardar v. Hosein Ali Bepari 26 C. 553. In the event of sale of a non-transferable occupancy holding, the purchaser can bo evicted by any of the co-sharer landlords to the extent of his own share, and if possession of the entire holding has been acquired by some of the co-sharers, the other co-sharers are entitled to joint possession thereof. Consequently the question of transferability was material for the purposes of the decision of the case, and the fourth ground taken by the appellants must prevail.

7. It has been argued, however, on behalf of the plaintiffs-respondents, that even if the holding is not proved to be transferable by custom or local usage, the defendants are estopped by their conduct, and that as they have taken the purchase-money in satisfaction of their mortgage dues, they cannot question the title of the plaintiffs under their conveyance. Upon the materials on the record it is not possible for us to give effect to this contention. No doubt, after the purchase by the plaintiffs had been completed, the defendants took the money deposited in Court; but, this by itself does not stop them. Yet, it may be possible for the plaintiffs to establish by evidence that the conduct of the defendants, before the sale was completed and during the stage of negotiation, was such as to estop them. This must be determined by the Court below along with the question of transferability of the holding.

8. The result is that this appeal is allowed in part. The decree of the Subordinate Judge will stand confirmed in respect of an one-fourth share, but will be set aside in respect of the remaining three-fourths share. To this extent, the case will be remanded in order that the title of the plaintiffs may be investigated on the basis of their purchase. The question of transferability raised by the defendants as well as the question of estoppel raised by the plaintiffs will be open for investigation, and both parties will be at liberty to adduce evidence. The plaintiffs-respondents are entitled to one-fourth of the costs of this appeal, and three-fourths of the costs will abide the result.


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