UDOY CHAND MAHATAB Vs. SAROJINI DEVI

JUDGEMENT

(1.) Separate accounts were registered under the Hooghly Collectorate in respect of Touzi No. 40. Separate accounts Nos. 40/ 2 and 40/3 were sold on the 25th June, 1941 for arrears of revenue and were purchased by the plaintiff Sarojini Devi. Each of these two separate accounts comprised a 7 anna share of the Touzi. Under this Touzi defendant No. 1 Maharaja of Burdwan who is the appellant in this appeal holds a Patni at an annual rent of' Rs. 3,000/-, in his capacity as Trustee executor of the Estate of late Bholanath Singh Roy. After the purchase in the revenue sale as aforesaid Sarojini Devi sued the Maharaja in respect of Patni rent for the last quarter of 1347, the quarter of 1348 and the second and third quarters of 1349 B. Section in her 14 annas share, impleading the proprietors of the remaining; two annas share as pro forma defendants Nos. 2 to 4. During the pendency of this suit, and at the instance of the original proprietors of that separate account the sale of separate account No. 40/3 was set aside on the 12th May, 1943. After the sale had been set aside the original proprietors of that separate account were impleaded as defendants and were on the prayer of the latter joined co-plaintiffs in the pending suit. They claimed arrears of Patni rent in their 7 anna share for the second and the third quarters of 1349 B. Section The defendant Maharaja paid rent due for the last quarter oft 1347 and the first quarter of 1348 B. S. to the former proprietors of the two separate accounts. He admitted liability to Sarojini Devi the original plaintiff, for the arrears for the second and third quarters of 1349 B. S. Although the sale for arrears of revenue was held on the 25th of June, 1941, the sale had taken effect as from the 28th of March 1941 viz., the day after the latest day of payment of the kist which was in arrears. The Maharaja defendant No. 1 received notice of the sale on the" 21st September, 1941 i.e. after the rent for the last quarter of 1347 B. S. and the first quarter of 1348 B. S. had' been paid to the original proprietors of the separate accounts. The Maharaja claimed protection under Section 72 of the Bengal Tenancy Act and maintained that he was not liable to the co-plaintiffs in respect of the Kists which had-already been paid to the original proprietors before the receipt of the notice of the auction purchase by him.

(2.) The learned Subordinate Judge accepted the defence and passed a decree in favour of the original plaintiff Sarojini in respect of half of her claim for the rent for the second and the third quarters of 1349 B. S.

(3.) On appeal by the plaintiff Sarojini against the dismissal of her claim for the last quarter of 1347 and the first quarter of 1348 B. S. the learned District Judge held that Section 72 of the-Bengal Tenancy Act was not attracted in respect of a sale held under Act XI of 1859.