DEBENDRANATH MITTRA Vs. GOURISANKAR SANKHANARIA

JUDGEMENT

(1.) THIS is a plaintiffs appeal in a suit for partition of plot No. 763, Khata No. 360 bearing an area 190 in the town of Cuttack. The plaintiff claims eight annas interest by virtue of his purchase. The Khasmahal is the landlord and the interest of the tenant is shown as Patadari with an annual rent payable. The terms and conditions of the tenancy are incorporated in periodical leases and kabuliyats which are renewed from time to time. In the Khatian papers, Chowdhuri Ramahari Das and Chowdhury Jayahari Das and several other Chowdhuries (a)) members of Bhingarpur Chowdhury family) stand recorded. It is not controverted that in partition Suit No. 69 of 1924 of the Court of the Subordinate Judge of Cuttack, the lands, in dispute, were allotted to the shares of Ohowdhury Bamahari and Chowdhury Jayahari, each having eight annas share therein, Jaihari's interest was sold in execution of a money decree in the Court of the Second Munsif of Outtack in Execution Case No. 991/36 and it was purchased on 17th March 1937 by one K.C. Mohanty (vide EX. 3). The said Krishna Chandra Mohanty sold his purchased right to the plaintiff on 28th August 1939. The plaintiff got himself substituted in the place of K.C. Mohanty in the Execution Court in order to get a delivery of possession. Eventually, he got it on 13th October 1539, the plaintiff has got himself recorded in the mutation papers maintained by the Khasmahal on 13th May 1940. This narration of events will make it clear that as between himself and the Khasmahal (landlord), he has completed his title and has got it acknowledged.

(2.) IN the meantime, however, the entire lands have been sold in execution of a certificate debt of arrear of rent due in respect of the lands and defendant 3 has become the auction -purchaser on 15th March 1940 (vide Ex. C. sale certificate). Defendants 1 and 2 have purchased (we do not know when) the remaining share of Ramhari by appropriate transfer.

(3.) IT appears from the order sheet of the certificate officer dated 18th January 1939 that notice under Section 52 was duly served, no objection filed and distress processes for attachment of movables of the certificate debtor were issued to the certificate officer, Puri, in which district the certificate debtors usually used to reside, returnable by 28th January 1939. The proceeding was adjourned on several dates till the certificate officer of Puri, in his letter No. 8783 dated 31st July 1939 stated that the distress warrant was returned unexecuted as the certificate debtor did not allow the peon to attach the movables on the ground that the property under certificate had long been sold. Thereupon, the certificate officer directed the Requisitioning Officer to supply property list. In usual course the Requisitioning Officer supplied the list of the properties for the purpose of sale. Thereafter, notice under Rule 25 of Schedule 2 was directed to be issued. Sale proclamation was served on some of the certificate debtors and on the legal representatives of certain others who had died in the meantime and whose legal representatives had not been substituted in the manner prescribed under Section 62, Public Demands Recovery Act, but was never served on one Brajabandhu Das who was reported to have left for Satyabadi P. 8. and whose actual address was not supplied. On a date subsequent thereto, fresh notice under Rule 25 was issued through Khasmahal and this notice was reported to have been served on 16th January 1940. About the circumstance that some of the certificate debtors' legal representatives were not substituted in the record in the manner provided by Section 52, Mr. De contended that as the death of some of them occurred after service of Section 7 notice, substitution was not vitally necessary and their legal representatives shall be deemed for all practical purposes to have been represented by those already on record. The simple answer to this is that this contention is against Section 52. The section opens with the words 'where a certificate debtor dies before the certificate has been fully satisfied.' Under the circumstances, the need for substitution is emphasised under the procedure even if they had died sub -sequent to the service of Section 7 notice. A question naturally arises whether the said representatives shall be taken to have been represented by the others already on record. It is not that the principle of representation does not apply to certificate proceedings. On the authority of the case of Kameswar Singh v. Ishwari Prasad Singh, A.I.R. (27) 1940 pat. 692 : (189 I. C. 114), it can be predicated that the doctrine of representation which obtains in the case of proceedings of rent suits and rent decree executions also apply to certificate proceedings. In order to hold that one represents another, some relationship between them must be established which will create a right to represent and right to be represented. This may happen when there is a joint family to whom the tenancy belongs and the manager of the family is on record or this may also happen if several tenants while having common ownership and possession allow themselves to be represented before the landlord in respect of the holding by only some of them. Neither of these conditions is present here. Since 1926, that is, the year of partition suit, already referred to, the family is separate, and it is said that these properties fell to the share of Jaihari and Ramhari. Under the circumstances, by family relationship it cannot be said that either Jaihari or Ramhari or other members of the family would represent the remainder in respect of these properties. This partition however, was not brought to the notice of the landlord (Khasmahal) not recognised by him. Under the circumstances, none but the recorded tenants would, represent the holding in the landlord's dealings with it including the suits or proceedings for recovery of arrears of rent. It is nowhere submitted in the Courts below that on the death of the certificate debtors their legal representatives allowed themselves by any conduct of theirs to be represented by others who were surviving. Under the circumstances, the principle of representation cannot be held to have applied to this case. The result is that the disputed properties were sold not in presence of the persons who represented the holding in relation to the landlord. I shall discuss its bearing on the question at issue presently.