KANCHAN MANDAR Vs. KAMALA PROSAD CHOWDHURY

JUDGEMENT

(1.) The subject-matter of the litigation which has culminated in this appeal is an agricultural holding owned by the members of a family of Mandars under the plaintiffs and the defendants as their landlords. The plaintiffs are interested to the extent of a fourth share and the defendants to the extent of a three-fourths share in the superior interest. The Mandars had mortgaged the holding to the defendants who sued to enforce their security, obtained a decree thereon, and took steps to bring the holding to salein execution. On the 17th February 1908, the Mandars transferred the holding to the plaintiffs under a conveyance for Rs. 1020 which was paid into Court in satisfaction of the mortgage-decree held by the defendants. The defendants had, prior to these proceedings, instituted a suit against the Mandars for arrears of rent payable in respect of their three-fourths share. An ex parte decre was at first obtained and was subsequently set aside; finally, on the 20th February 1908, a decree for rent, which could operate only as a decree for money, was made in favour of the defendants. On the 16th June 1908, the defendants in execution of that decree purchased the right, title and interest of the Mandars in the holding in dispute. They obainted delivery of possession through Court and thus dispossessed the plaintiffs. On the 29th July 1910, the plaintiffs instituted the present suit for declaration of their title by purchase and for recovery of possession. The defendants contended that the holding was non-transferable and that the plaintiffs had consequently acquired no title under their purchase. The Subordinate Judge has not allowed evidence to be given upon the question of the existence of a custom of transferability of occupancy holdings in the locality, on the authority of the decision in Haro Chandra Poddar v. Umesh Chandra Bhattacharjee (1) He has found on the merits in favour of the plaintiffs and has made a decree for possession and for determination of mesne profits.

(2.) In the present appeal by the defendants, the decree of the Subordinate Judge has been assailed substantially on four grounds; namely, first, that the conveyance by the Mandars in favour of the plaintiffs was fraudulent and did not pass title to them; secondly, that the plaintiffs are estopped to deny the validity of the title of the defendants, as with full knowledge of the rent decree and of the execution proceedings thereon they did not raise any objection; thirdly, that the defendants in their character as purchasers at an execution sale were entitled to raise the question of transferability of the holding; and, fourthly, that the defendants in their character as co-sharer landlords were entitled to resist the claim of the plaintiffs to the extent of a three-fourths share.

(3.) In support of the first ground, it has been contended that at the time when, the conveyance was executed by the Mandars in favour of the plaintiffs on the 17th February 1908, the transferors as well as the transferees were aware of the pendency of the suit for arrears of rent, and that the transfer was consequently a device to defeat the claim of the defendants as landlords. There is clearly no foundation for this contention. There is nothing to show that the transferors intended the sale as a cloak or device for their own protection; and on the principle explained by this Court in the case of Hakim Lal v. Mooshahar Sahu 34 C. 999 : 6 C.L.J. 410 : 11 C.W.N. 889 the transfer cannot be impeached as fraudulent. The bona fides of the transfer cannot be doubted, because during the pendency of the execution proceedings on the basis of the mortgage, the transferors intimated to the Court that they intended to satisfy the mortgage-decree by sale of some of their properties, though they did not specify the particular properties they intended to sell. There was a valid decree against them, and the sale for consideration corrected in these circumstances cannot be deemed fraudulent. The first ground thus fails.