MOFIZUDDIN SARDAR Vs. ASHUTOSH CHUKERBUTTY

JUDGEMENT

(1.) Two questions of law of some importance and novelty have been argued in these appeals, namely:

(2.) First, whether a sale in execution of a decree for the whole rent obtained by a landlord, who at the time of the suit is the registered proprietor and who has been placed and maintained in possession by a competent Court, operates as a sale under Chapter XIV of the Bengal Tenancy Act even if it transpires ultimately, as the result of litigation in a title suit, that he is not the sole landlord and has co-sharers in the property. Secondly, whether it is competent to a purchaser at a sale held in execution of a decree for arrears of rant to annul, under Section 167 of the Bengal Tenancy Act, an incumbrance upon the property purchased, without annulling at the same time a superior incumbrance directly subordinate to the interest purchased.

(3.) The circumstances which render necessary the decision of these questions of law are not the subject of controversy between the parties to the litigation. One Haranath Sarkar was owner of a taluk Sanirjhore under the Government. The first in the series of subordinate interests was an osat taluq held by Aleph Sardar who had under him a howlah held by Abdul Sardar in one case and Srikrishna in another. Under the howladar was the osat howladar, Mafizuddin Sardar, the present plaintiff. The defendant Asutosh Chuckerbutty is a nim- howladar under him. Haranath died on the 14 January 1882. He left three sons, Jogendra Nath, Navendranath and Surendra Nath, the last two infants under the guardianship of their mother Saudamini. Haranath had made a testamentary disposition of his properties and Jogendra managed the estate under the Will till his death on the 2nd December, 1886. He left a widow Kamal bashini and six daughters but no male issue. Upon the death of Jogendra Nath, disputes broke out amongst the members of the family as to the true effect of the dispositions contained in the Will of Hara Nath and on the 9 September 1889, the minor sons of the testator represented by their mother Saudamini commenced an action against Kamal bashini for recovery of the one-third share of the estate of which the latter had taken possession. On the 7 October 1890 the Subordinate Judge made a decree in favour of the plaintiffs. The defendant appealed to this Court but during the pendency of the appeal on some date not specified in these proceedings, the plaintiffs executed the decree and obtained delivery of possession on the 30 August 1892. The appeal was allowed by this Court and the plaintiffs were declared entitled to a two-thirds share only of the estate. They obtained leave to appeal to Her Majesty in Council and as they furnished sufficient security to the satisfaction of the Court, they were allowed to remain in occupation of the entire estate. On the 29 March 1894, they were registered as proprietors in respect of the entire estate under the provisions of the Land Registration Act. On the 22 February, 1896 their Lordships of the Judicial Committee affirmed the decision of this Court. Norendra Nath Sircar V/s. Kamalbasini Dasi 23 C. 563 : 23 I.A. 18, and it was then finally decided that the plaintiffs were entitled only to a two- thirds share of the estate and that the remainder rightfully belonged to their sister-in-law Kamalbashini. Meanwhile on the 11 April 1895 the plaintiffs had brought a suit against Aleph Sardar for the entire rent of the osattaluq held by him for the period which intervened between April 1891 a February, 1895. On the 22 May, 1895, the suit was decided ex parte. The rent-decree was subsequently executed and on the 20 September 1897 one Mohim Chandra Sarkar purchased the osat taluq at the execution sale for the benefit of Tajomoy Chuckerbutty. The purchaser obtained delivery of possession on the 11 December 1897 and subsequently on the 16 March 1898 served notices upon the subordinate tenure-holders under Section 167 of the Bengal Tenancy Act, On the 13 April 1901 and 29 March 1906, the plaintiff Mofizuddin who held the osat howla brought two actions for rent for different parcels of land against Ashutosh Chuckerbutty the nim-howladar for arrears of rent of the years April 1900 to March 1904 a April, 1902 to January 1908, respectively. The defendant resisted the action on the ground that his nim-howla as also the osat howla of the plaintiff had been annulled by due service of notice by the auction-purchaser of the osat taluq. The plaintiff contested the validity of this defence on two grounds namely, -first, that the sale in execution of the decree for rent obtained by Saudamini on behalf of Narendra and Surendra was not a sale under the Bengal Tenancy Act, because, as subsequent events showed, they were only two out of three joint landlords; secondly, that if the decree was assumed to be operative as a true rent decree, the osat howla and nim-howla could not be treated as annulled inasmuch as there was nothing to show that the superior incumbrance of the howladar had been similarly annulled. In one of these suits, the Court of first instance held that the decree obtained by Saudamini was not a true rent decree, that consequently the subordinate tenure-holders were not affected by the sale, and that the plaintiff was accordingly entitled to a decree for rent. This judgment was reversed in appeal by the Subordinate Judge, on the ground that the decree was operative as a rent decree, and it was sufficient for the defendant to prove that his interest as also that of his immediate landlord, the plaintiff, had been annulled by the auction- purchaser. In the other suit, the Court of first instance followed the appellate decision in the earlier suit and held that the decree was a rent decree and the effect of the sale and of the subsequent service of notice was to extinguish the tenancy in respect of which the rent is now claimed. On appeal, this decree has been confirmed by the District Judge; who has treated the decree of 1895 as operative as a rent decree and has farther held that an auction-purchaser can annul any particular incumbrance and need not aunul any superior incumbrance immediately subordinate to the interest purchased by him. The plaintiff has now appealed to this Court and on his behalf the decision of the Court of Appeal below in both the suits has been assailed on the two-fold ground that the decree of 1895 is not operative as a rent decree and that in any view of the matter, till the interest of the howladar is proved to have been extinguished, the subordinate incumbrances owned by the plaintiff and the defendant must be treated as unaffected by the execution sale.