CHINTAMAN MANDAR Vs. SIA RAM MANDAL

JUDGEMENT

(1.) This is an appeal by the plaintiffs and arises out of a suit brought under Order 21, Rule 63, Civil P.C., in the following circumstances: The disputed lands comprising an occupancy holding of 8 bighas 12 kathas 17 dhurs belonged to one Zira Mandar. On his death the lands devolved on his son Jhoti. Subsequently, Jhoti died leaving a widow Sarjugia. While she was in possession, she conveyed the lands to the plaintiffs by a registered sale deed dated 10 October 1917 executed in the name of Naubat, a deceased brother of plaintiff 1. On Naubat's death the plaintiffs became the exclusive owners of the lands. Sometime before the year 1932 Sarjugia died, and, on her death, her husband's estate devolved on his mother Kanchania who was still alive. In 1932 the landlord filed a rent suit against Kanchania in respect of the disputed holding and obtained a rent decree against her. In execution of that decree the disputed holding was sold and it was purchased by defendant 2, and he purported to take delivery of possession in 1934. In 1936 defendant 1 obtained a money decree against defendant 2 and in execution of that decree attached the disputed lands. Thereupon, the plaintiffs preferred a claim under Order 21, Rule 58, Civil P.C., on the basis of their purchase from Sarjugia. The claim was dismissed on 8 March 1938. The present suit was then brought on 22 March, 1938. The suit was decreed by the Munsif, but on appeal, the Subordinate Judge reversed his decision and dismissed the suit.

(2.) Admittedly, the occupancy holding which was purchased by the plaintiffs in 1917 from Sarjugia was not transferable without the landlord's consent under the law then in force. It is also undisputed that the plaintiffs did not get their names mutated in the landlord's serishta. Nor is it disputed that the decree for rent which was obtained by the landlord in 1932 was a valid rent decree according to the law then in force. But by the Bihar Tenancy (Amendment) Act, 1934 (Act 8 of 1934) occupancy holdings were made transferable with retrospective effect. The relevant section of that Act is Section 26N which came into force on 10 June 1935. That section has since been replaced by Section 26B by the Bihar Tenancy (Amendment) Act, 1938 (Act 11 of 1938) which came into force on 9 November 1938. At the date of the institution of the present suit, therefore, Section 26N was in force. That section stood as follows: Every person claiming an interest as landlord in any holding or portion thereof shall be deemed to have given his consent to every transfer of such holding or portion by sale, exchange, gift or will made before the first day of January 1923, and, in the case of the transfer of a portion of a holding, to have accepted the distribution of the rent of the holding as stated in the instrument of transfer, or if there is no such instrument, as settled between the transferor and the transferee.

(3.) Though the case put forward by the plaintiffs in the Courts below was somewhat different, the contention raised on their behalf in this Court is based entirely on Section 26N. It is said that the sale deed obtained by them from Sarjugia being prior to 1 January 1923, the landlord shall, by reason of the provisions of Section 26N, be deemed to have given his consent to the transfer on the date it was made, and that the landlord not having impleaded them in the rent suit of 1932, the decree obtained in that suit cannot be regarded as a valid rent decree binding on them. The decree, it is said, had the effect of a money decree, and therefore the sale held in execution thereof could not affect the plaintiffs interest. On the other hand, it is contended on behalf of the defendant-respondent that according to the law then in force, the rent decree obtained in 1932 was a valid rent decree and the sale held in execution thereof was a valid rent sale which passed the holding and not merely the right, title and interest of the judgment- debtor.