NALINI BEHARI ROY Vs. FULMANI DASI

JUDGEMENT

(1.) This matter cornea before us on a second appeal and on a Rule. The appellant who is also the petitioner in the Rule is a landlord who is seeking to sell a tenant s holding in execution of a rent-decree. The respondent purchased the holding from an occupancy raiyat and seeks to defeat the landlord s right by depositing the decretal money in Court under Section 170(3) of the Bengal Tenancy Act. The appellant contests his right to do this on the ground that the holding is not transferable, as it has now been found it is not, and that the respondent has not, therefore, any interest in the holding voidable on the sale. Both the lower Courts have found in the respondent s favour, and have allowed the deposit to be made. The appellants now appeals from the decision in the lower Appellate Court, and in case it should be held that no appeal lies has also obtained a Rule calling on the respondent to show cause why the order accepting the deposit should not be set aside.

(2.) Leaving aside for the moment the question whether any appeal lies, we have to consider whether the respondent, that is, the applicant, has any interest in the land, and if he has, whether that interest is voidable on the sale.

(3.) On the authorities before us, I hold that the complainant has no interest in the land. This result, in my opinion, follows from the decisions of this Court in Srimati Nissa Bibi v. Radha Kishore Mnnikya 11 C.W.N. 312 and Prosunno Kumar Middar v. Bama Charan Mondal 13 C.W.N. 652 : 3 Ind. Cas. 461. The two cases together are certainly an authority for the statement that the transferee of a non-transferable holding is not a representative of the transferor under Section 244 of the old Code or the owner of immoveabls property under Section 311, and in both cases the point is considered as depending on the question whether he had an interest in the property. It is possible, of course, that the phrase "having any interest" in Section 170(3) of the Bengal Tenancy Act might be construed as having a wider application than the "representative" of a party to a suit under Section 244, or the owner of immoveable property under Section 311. But in Ishan Chunder Sirkar v. Beni Madhub Sirkar 24 C. 62 : 1 C.W.N. 36 the authority on which Srimati Nissa Bibi v. Radha Kishore Manikya 11 C.W.N. 312 was decided it seems as if the classes of persons described in the three Sections were all the same, as indeed there is no reason why they should not be.