N.R. Chatterjea, J.
1. The question referred to the Full Bench is whether a purchaser of the whole or portion of a non-transferable occupancy holding who has not been recognised by the landlord has an interest in the holding which is voidable on the sale and so, entitled to make a deposit under Section 170(3) of the Bengal Tenancy Act.
2. Section 158B of the Bengal Tenancy Act, provides that where a tenure or holding is sold in execution of a decree for arrears of rent (under the provisions of Chap. XIV of the Act), the tenure or holding shall (subject to the provisions of Section 22) pass to the purchaser. Section 159 lays down that such purchaser shall take subject to certain interests defined as 'protected interests' and with power to annul the interests defined in Chap. XIV as 'incumbrances.' That being so, the holding itself passes to the purchaser, subject only to the 'protected interests' and with power to avoid incumbrances.
3. In the present case, the petitioner is the unregistered transferee of the holding from opposite parties Nos. 2 and 3 who are recorded as tenants of the holding in the office of the landlord, the opposites party No. 1. The opposite parties Nos. 2 and 3, the original tenants, represent (so far as the landlord is concerned) the ownership of the holding. Sale held in execution of a rent; decree under the provisions of Chap. XIV of the Act would pass to the purchaser the holding itself free of any interest of the unregistered transferee. That being so, the question arises whether the interest of the petitioner can be said to be an interest which is 'voidable on the sale.' Now, if the interest is extinguished by the sale and ceases to exist, can it be said that the interest is voidable on the sale? There is no doubt that the petitioner had acquired (except against the landlord) an interest in the holding. But if such interest did not subsist after the sale, it is difficult to see how any question can arise of avoiding such interest.
4. Apart from the authorities on the point, it appears to me that the words 'interest voidable on the sale' refer to interests coming within the description of 'incumbrances,' which, unless steps are taken to avoid them, subsist after the sale, and the interest of a transferee of the holding itself from the tenant is not such an interest. Section 161 of the Act defines 'incumbrance,' and Section 167 lays down how such incumbrances can be annulled by a purchaser having power to annul the same. In the case of Abdul Rahaman v. Ahamader Rahaman 31 Ind. Cas. 554 : 43 C. 558 : 19 C.W.N. 1217 : 22 C.L.J. 356, it was held that the interest of an unregistered purchaser of a portion of a patni tenure is not an incumbrance within the meaning of Section 161 of the Act, and so far as the present question is concerned, there is no difference between a patni tenure and a holding. And if a portion of a tenure or holding is not an incumbrance, the entire tenure or holding cannot be an incumbrance. Apart from the decided cases, therefore, it appears that the interest of an unregistered transferee is not an interest 'voidable on the sale.'
5. It has, however, been held in some cases that it is an interest voidable on the sale. In Radhika Nath Sarkar v. Rakhal Raj Gayen 3 Ind. Cas. 835 : 13 C.W.N. 1175 : 10 C.L.J. 473 (a case under Section 171 of the Bengal Tenancy Act) the question was whether an unrecorded purchaser of a share in a darpatni tenure had an interest in the tenure which was voidable upon a sale in execution of a decree for rent obtained by the patni-dar against the recorded tenants of the darpatni and, as such, could apply under Section 171 of the Bengal Tenancy Act. The learned Judges observed as follows: 'There can be no question that the predecessor-in-interest of the present, appellants was a person who had an interest in the tenure; there can be no question also that the interest was such as would be voidable upon the sale, because the patnidar was entitled in execution of the decree obtained against the recorded tenants of the darpatni to sell the entire tenure.' The reason, therefore, why the learned Judges held that the interest would be voidable on the sale was that the entire tenure would be sold in execution of the rent decree obtained against the recorded tenants. That shows that the learned Judges were of opinion that an interest which would be injuriously affected by the sale is an interest voidable on the sale. But, as already pointed out, the expression 'voidable on the sale' indicates the subsistence of some interest which has to be avoided after the sale. The case of Jugal Mohini Dasi v. Srinath Chatterjee 7 Ind. Cas. 477 : 12 C.L.J. 609 was a case under Section 170, Clause (3) of the Bengal Tenancy Act. But it proceeds upon the same reasoning. These were followed in the case of Tarak Das Pal v. Harish Chandra Banerji 16 Ind. Cas. 977 : 17 C.W.N. 163 : 16 C.L.J. 548 where it was held that 'a purchaser of a holding who has not been recognised as a tenant by the landlord has an interest in the holding which is voidable on a sale held in execution of a decree for rent against a registered tenant within the meaning of Clause (3) of Section 170 of the Bengal Tenancy Act.' The learned Judges pointed out that 'the expression used by the Legislature is interest voidable on the sale,' and not 'incumbrance voidable on the sale' under the provisions of the 14th Chapter of the Bengal Tenancy Act. The language used by the Legislature is comprehensive and should not be narrowly construed in view of the obvious object of this provision. The case of Ahamadullah Chowdhury v. Hakaru Sahu 27 Ind. Cas. 176 : 20 C.W.N. 39 : 22 C.L.J. 106 merely followed the above case.
6. The whole thing turns upon the meaning to be attached to the expression 'voidable on the sale,' whether it means an interest injuriously affected by the sale, or an interest which subsists and which has to be avoided after the sale. The opinions of the learned Judges who decided the above cases are entitled to the highest respect, but it seems to me that the distinction pointed out above was not kept in view in those cases.
7. It is contended by the learned Vakil for the petitioner that some steps have to be taken by the purchaser at a sale if the unregistered transferee does not give up possession of the holding, and, therefore, it is a case of avoiding the interest on the sale. But, if that contention is well-founded, it may be applied with equal force to the case of a trespasser, who certainly has no interest voidable on the sale.
8. There are a large number of decisions of our Court and a decision of the Special Bench of the Patna High Ceurt Mahadeo Lal v. Langat Singh 40 Ind. Cas. 247 : (1917) Pat. 169 : 2 P.L.J. 457 : 1 P.L.W. 504 supporting the view I have taken. They are all noted in Sen's Bengal Tenancy Act, 5th Edition at pages 797-798. It is unnecessary to discuss them.
9. For these reasons, I think that the question referred to the Fall Bench must be answered in the negative. The result, therefore, is that the Rule is discharged with costs, two gold mohurs, for all the hearings.
10. I agree. I have already stated my reasons in the Letter of Reference and I do not think that I should take up the time of the Court by reiterating them,
B.B. Ghose, J.
11. I agree. My view was already expressed in the case of Boroda Prosad Roy Choudhuri v. Foizuddi Haider : AIR1924Cal1005 and the discussions that I have heard to-day confirm me in my opinion. The only thing that 1 may add is that where an interest is extinguished on a sale nothing remains afterwards which need be avoided. The interest, therefore, of the petitioner cannot be called an 'interest voidable on the sale.'
12. I agree in the judgment delivered by my learned brother Mr. Justice Chatterjea.,
13. I agree. The words 'interest voidable on the sale' in Section 170(3) of the Bengal Tenancy Act connote that such interest may or may not be avoided by the auction-purchaser at his election. But whether the interest in question will cease on the sale or subsist thereafter is a matter over which the purchaser has no control. He can neither make the holding transferable by affirmance nor avoid the transfer by disclaimer. It seems to me, therefore, that it is not quite correct to say that the petitioner's interest would pass on the sale. What really would happen is that under the sale the title to the holding would pass to the purchaser free from such interest, which would be extinguished on the sale taking place.