MAFIZUDDIN Vs. KORBAD ALI CHOWDHURI

JUDGEMENT

(1.) THIS is a suit by the plantiffs to avoid certain undertenures held by the defendant- appelant. The property was sold under Act XI of 1859, for defaulters and so were responsible for the sale; and, secondly, that the lands were of such a nature that the case falls within the fourth exception to Section 37 of Act XI of 1859. The facts lie within a narrow compass. On the 23 of September 1889, the taluk was put up for sale by auction for the realization of arrears of revenue, and purchased by the plaintiffs in the name of their servant; after their purchase, the plaintiffs were unable to pay the Government revenue, when it became due, and the taluk was again put up to auction for the arrears of revenue for the September kist of 1891 and the plaintiffs again purchased it in the name of their am-mukhtear. They now seek to avoid the undertenure of the present appellant It is not, open to them to do so. The second sale was owing to their own default, they were the defaulters--and the case falls within Section 53 of Act XI of 1859. It has been argued that, inasmuch as in the case of the first sale the plaintiffs were not defaulters, upon that sale the estate vested in the purchasers free from all encumbrances. I do not think this is the true view of Section 37: and, in my opinion, the estate does not by the mere sale become in the hands of the purchasers free from all encumbrances, but it is open to the purchaser to avoid and annul all undertenures with the exceptions mentioned in the section. In other words, before the estate becomes free from encumbrances, the purchaser must avoid them. But as the plaintiffs were themselves the defaulters on the second sale, it is not open to them to avoid the undertenure of the appellant; and they took the estate subject to existing encumbrances. In this view, the second point becomes unimportant

(2.) THE appeal must be allowed with costs, and the suit dismissed with costs in both the lower Courts.