JOY CHAND SERAOGI Vs. DOLE GOBINDA DAS

JUDGEMENT

(1.) The facts of the case, which are material for this appeal are as follows: Four annas share of Touzi No. 199 of the Murshidabad Collectorate belonged to Nawab Bahadur of Murshidabad, as mutwalli of a wakf estate. In August 1901, he as mutwalli settled the same in patni right to Daiba Kumari Debi and others, the executors to the estate of Indra Nayaran Singh at an annual rent of Rs. 2369. For brevity's sake this patni would hereafter be called the "four anna patni." The said executors in their turn settled the same in darpatni right to Tarini Prosad Dhur at an annual rent of Rs. 2369 on 29 April 1905. This darpatni would for brevity's sake be hereafter called the "four anna darpatni." There was a covenant in the darpatni kabuliat (Ex. 11) by which the darpatnidar undertook to pay by barat the patni rent to the Nawab Bahadur of Murshidabad. Tarini Prosad Dhur in his turn granted three separate sepatnis to three persons at different dates of different portions of his darpatni lands. One of such sepatnidars was Adhar Chandra Mondal. He did not, however, grant sepatnis in respect of all the lands of his darpatni-taluk but retained a portion thereof in khas management. After his death his heirs, Bishnu Das Dhur and others granted on 1 September 1923 all those lands of the darpatni, which their father had held in khas, in sepatni to Joy Chand Serogi, Keshori Mull Serogi and Chatturbhuj Serogi by taking a large amount of money as selami. Thus after this grant all the lands of the darpatni were let out in sepatni right to four sets of persons. The total rent of all the four sepatnis came up to Rs. 2256-9-0. It was thus less than the darpatni rent (rs. 2369) payable by the heirs of Tarini Prosad Dhur to the patnidar Daiba-kumari Debi and others. This loss was made up by those persons from the patni which they had in respect of the other twelve annas share of the said Touzi which was owned by the executors of Indra Narayan Singh. This patni would hereafter be called the "twelve anna patni." It is not necessary for this appeal to narrate the history of the said patni of the twelve annas share of the said Touzi or the darpatnis carved out of the same. On 8 Falgoon 1330 (=21 February 1924) the heirs of Tarini Prosad Dhur sold their aforesaid "four anna darpatni and their twelve anna patni." The name of defendant 2, Nerode Barani Dasi, who is the wife of defendant 1, Dolegobinda Dass, appeared as the purchaser in this conveyance. On 5 Kartic 1386 (=20th October 1929) Nirode Barani Dasi sold the "twelve anna patni" to Amano Burmaniya. There thus remained with her the unprofitable "four anna darpatni." On 6 February 1929, the "four anna patni" was purchased by Sardi Bai, wife of plaintiff l, Joy Chand Serogi. The finding of the learned Subordinate Judge is that Sardi Bai was the benamidar of her husband Joy Chand Serogi and that finding has not been challenged before us by any of the parties. At a partition between Joy Chand Serogi and his brother Kishorimull Serogi, the interest of Kishorimull in the sepatni which they and Chatturbhuj Serogi held under the four anna darpatni fell to the share of Joy Chand Serogi. This partition was after 15 May 1937 but before the institution of the suit in which this appeal arises. From after the date of that partition Joy Chand Serogi and Chatturbhuj Serogi became the owners of the said sepatni. They are plaintiffs 1 and 2 in the suit and Kishorimull Serogi is pro forma defendant 3.

(2.) The owners of the "four anna patni," Daibakumari and others, had given on the "four anna darpatnidar" the barat to pay the patni rent due for the same to the Nawab Bahadur of Murshidabad. The darpatnidar of the four anna darpatni, who was ostensibly Nirode Barani Dasi, did not however pay the patni rent on several occasions. The sepatnidar Adhar Chandra Mondal deposited the same on two occasions to save the four anna patni from the summary sale under Regn. 8 of 1819-once in November 1928 and the second time in November 1929. His interest prompted him to do so, for, if the said patni had been sold at those summary sales, the purchaser would have had the right to annul his sepatni. He brought two suits against Nirode Barani and her husband Dolegobinda Daas for recovering the amounts deposited by him. In those two suits he made the patnidar of the "four anna patni" as also the other sepatnidars, Joy Chand Serogi and others, holding under the "four anna darpatni" parties defendants. His suits were ultimately dismissed against Nirode Barani and DolegobindaThe judgment of this Court is reported in Adhar Chandra Mondal V/s. Dog Gobinda Das ( 36) 23 A.I.R. 1936 Cal. There was again default in the payment of rent due for the "four anna patni." This time a sale was held under Regn. 8 of 1819 at which Joy Chand Serogi purchased the said patni, but this sale was set aside at the suit of Adhar Chandra Mondal. If the sale had not been set aside Joy Chand would have been in a position to annul the three sepatnis, which were all profitable ones and would have certainly annulled those three sepatnis. As a sale of the "four anna patni" either in execution of a rent decree or under Regn. 8 of 1819 would have imperilled the sepatnis including the sepatni of Joy Chand and his cosharers Joy Chand purchased by private treaty the patni which was not profitable (for the darpatni rent was equal to the patni rent) in the name of his wife Sardi Bai, by paying Rs. 100 as its price. He thus acquired control of the field to a certain extent.

(3.) After Sardi Bai had become the ostensible owner of the "four anna patni," the patni rent due in respect thereof for the last six months-Augryan to Chaitra -of 1340 B.S. =(October 1933 to April 1934) was not paid to the Nawab Bahadur of Murshidabad with the result that the latter applied for sale of the said patni under Regn. 8 of 1819. That sale was avoided by Kishorimull Serogi and Chatturbhuj Serogi depositing with the Col-lector the arrears due to the Nawab Bahadur in their character as some of the sepatnidars under that patni. They again saved the said patni from a summary sale under that regulation for the arrears of rent for the first six months-Bysac to kartic of the year 1341 B.S. (April 1931 to October 1934). For recovering the amounts so deposited they instituted two suits, Nos. 581 of 1934 and 957 of 1935, in the first Court of the Munsif at Berhampore, against Nirode Barani and Dolegobinda Dass. In those suits they alleged that Dolegobinda Dass was the beneficial owner of the "four anna darpatni," Nirode Barani being his benamidar. They contended that as the darpatnidar had covenanted with the patnidar to pay the patni rent due to the zamindar, the darpatnidar who according to them was Dolegobinda, was liable to pay them what they had deposited in payment of the patni rent. The learned Munsif found that Dolegobinda was the beneficial owner of the darpatni. He granted decrees against Dolegobinda only. His decrees were affirmed on appeal by the learned Subordinate Judge on 8 June 1936. On second appeals to this Court the suits were dismissed against Dolegobinda but decreed against Nerode Barani. The judgment of this Court was delivered on 7 March 1939. It is Ex. D (4).