HARIHARNATH DAS Vs. RAJANI KANTA LAIK

JUDGEMENT

(1.) The suit out of which this appeal arises was brought by the plaintiffs to set aside a putni sale held under Regulation VIII of 1819 The Subordinate Judge allowed the plaintiffs claim and this appeal is presented by Hariharnath Das, defendant No. 2, who was the auction-purchaser.

(2.) The facts are shortly as follows: There was a zemindari which consisted of 7-annas share of Mouza Sirsha and chak Belahari. It belonged to one Sham Chand Mundle and one Saroda Sundari Dasi in equal shares. On 28th February 1886, the zemindars granted a putni lease to Dhiru Mundle, the predecessor-in-title of defendants Nos. 3 to 8. Sham Chand sold his moiety of the zemindari, i.e., 3 1/2 annas to Ramkalpo Nayek, father of the plaintiffs, on 1st May 1885. Previous to this, the 3 1/2 annas share of Sarado Sundari had been purchased by Raja Ram Ranjan Chukrabarty, defendant No. 1, at a Court sale in April 1888. On 26th March 1891, Chayen Mundle, defendant No. 3 and son of Dhiru Mundle, executed a kabuliat in favour of defendant No. 1 for the 3 1/2 annas share which had been purchased by the defendant No. 1. On 7th August 1904, two usufructuary mortgages were executed (1) Exhibit 6 by Sheikh Abdu, defendant No. 4, and Hitu Bibi, defendant No. 5 and (2) Exhibit A by Chayen Mundle, defendant No. 3, in favour of the plaintiff, Sailaja Kanta Nayek. Shaikh Abdu and Hitu Bibi mortgaged a 4-anna 15-gunda share of the 7-annas while Chayen Mundle mortgaged a 6- anna 10-gunda share of the 7-annas. The rent of the putni for 1312 B. S having fallen into arrears, the defendant No. 1 brought the putni to sale on 15th May 1906. The defendant No. 2 purchased the putni at that sale and was put into possession. On 2nd May 1907, Chayen and his co-sharers executed a kobala of the putni in favour of the present plaintiffs. That sale was in pursuance of an agreement which was entered into about a month before, on 11th April 1907. In January 1907, defendant No, 9 had become the purchaser of 5-annas 15-gundas out of the share of Chayen under a mortgage-decree. On 13th May 1907, the plaintiffs filed the present suit just within the year allowed by law.

(3.) A question was raised at the hearing whether the sale to the plaintiffs was for good consideration and bona fide. The finding of the Subordinate Judge on this issue was in the affirmative and the learned Pleader for the appellant does not now question this finding. He raises two points (1) that the. plaintiffs have no right to maintain the suit inasmuch as by their kobala, they purchased a mere right to sue which by Section 6 (c) of the Transfer of Property Act cannot be transferred; and (2) that the formalities required, for the sale were duly carried out and that the sale was binding against the plaintiffs or their vendors. (1) With regard to the first point, it has been held more than once by this Court that a putni sale is voidable only and not void by reason of any irregularities in the transaction and, moreover, that it can only be avoided by a suit under the provisions of Section 14. See Suresh Chandra Mukhupadhya v. Akhori Singh 20 C. 746 and Ram Sona Chowdhurani v. Nabakumar Sinha Choudhuri 13 C.L.J. 404 : 10 Ind. Cas. 90 : 16 C.W.N. 805. It might, therefore, be a point of some difficulty as to what the plaintiffs had taken by their purchase, did that purchase stand entirely alone, We are, however, relieved from the difficulty of discussing and deciding that point as we find that one of the plaintiffs at least was interested in this property before the sale took place. Sailaja Kanta Nayek, by virtue of the two mortgages above referred to, was clearly entitled to bring a suit under Section 14 (1) of Regulation VIII of 1819 to reverse the sale. It was argued that these mortgages were usufructuary and that no possession under them was given and, that, consequently, the Court must regard them as mere paper transactions not conferring any interest in the property. That we certainly are not prepared to do. There is no question whatever upon the evidence that monies were advanced under both these mortgages. The only reason why possession was not taken by the mortgagees was because Madhu Babu told the tenants not to pay rent to the mortgagees. The plaintiffs, therefore, are entitled to maintain this suit.