DEOKINANDAN PROSAD Vs. AGHORENATH BANERJI

JUDGEMENT

(1.) This appeal by the plaintiff was referred by me to a Division Bench in order to consider the applicability of the Full Bench decision of the Allahabad High Court to decide the question whether on the sale of land the house standing there, on also passes to the purchaser. The facts are these. In Tillage Sikandarpur Ferda, tauzi No. 4990, the defendants second party were proprietors in possession of 2 annas 10 gandas odd share. Out of this they sold 1 anna 17 gandas odd share to the plaintiff for a sum of Rs. 30,000 by a registered sale-deed dated 5 March 1918. The khudkast and bakast lands appertaining to this share were amicably partitioned between the plaintiff and the defendants second party, but as the defendants second party were still causing trouble and disturbing possession of the khudkast and bakast lands thus allotted to the plaintiff's share, he instituted a suit on 23 December 1918, for a declaration that he was entitled to retain khas possession of the lands which he said had been allotted to his share on amicable partition, but in case the private partition was not established to the i satisfaction of the Court then a regular partition should be made by the appointment of a commissioner; mesne profits were also claimed against the defendants for a certain period. On 20 May 1919, during the pendency of the suit, the plaintiff applied for attachment before judgment of the immovable properties of the defendants second party, that is to say of their 13 gandas odd share. The Court granted the prayer for attachment on 27 May 1919. The partition suit was fought up to the High Court where it was ultimately compromised and a final decree in terms of the compromise was passed on 26 November 1927, by which the khudkast and bakast lands were partitioned by metes and bounds and a decree for mesne profits and costs was also passed in favour of the plaintiff. After realis. irig a portion of the decree, the plaintiff filed a petition on 23 May 1939, for execution of the balance by attachment and sale of the residential house of the defendants second party which stood on plots Nos. 1999, 2000 and 2002 in that portion of the lands which by partition was allotted exclusively to the 13 gandas share of the defendants second party. During this execution proceeding the defendant first party preferred a claim case under Order 21, Rule 58, Civil P. C, alleging that he had purchased that house along with the land upon which the house stood in execution of a mort gage decree which he had obtained against the defendants second party. The plaintiff then came to know that the defendants second party had actually executed a mortgage bond dated 18 May 1919, in favour of the defen dant first party. It will be noticed that the mortgage bond was executed before the actual attachment of the land which was covered by the mortgage bond, was ordered by the Court. The mortgagee in due course obtained a decree and in execution of that decree he purchased on 5 May 1934, the 13 gandas share of the defendants second party and obtained delivery of possession in April 1987.

(2.) The case of the plaintiff that the mortgage bond was fictitious and fraudulent has not been accepted by the Courts below upon the ground that the plaintiff was made a party to the mortgage suit and the mortgage decree was passed in his presence. It must therefore be assumed that the mortgage decree was a valid decree and in execution full title passed to the defendant first party to the land covered by the mortgage bond. The serious question which was then agitated between the parties was as to whether by the execution purchase the defendant first party became the owner only of the land which was exclusively allotted to the 13 gandas share or also to the house which stood upon a portion of this land. The Courts below have concurrently come to the conclusion that as the house was attached to the land and as there was no reservation in the mortgage bond and in the sale certificate which was granted to the mortgagee auction-purchaser, the latter became the full owner of the house -. they "also accepted his case that the defendants second party was living in that house since the date of the auction purchase as a tenant of the defendant first party. In appeal Mr. Baldeva Sahay strenuously argues that the provision of Section 8, T. P. Act, has no application to an involuntary sale in execution of a decree. He also relies upon the decision of the Allahabad High Court in Umrao Singh V/s. Kacheru Singh where it was held that the residential house of a zamindari is a separate unit and in no sense a part and parcel of the proprietary right owned by him in the mahal so that on the transfer of the proprietary interest of the zamindar in execution of a mortgage decree against him his residential house in the abadi site, unless it is included in the mortgage itself, cannot pass to the transferee. Allsop J. took a contrary view.

(3.) In Asghar Reza Khan V/s. Mahomed Mehdi Hossein Khan (03) 30 I. A. 71 Lord Lindley in delivering the judgment of their Lordships made these observations with regard to the interpretation of a conveyance and a sale certificate. I am reading from page 564: The conveyances of the plaintiffs ancestor Syad Lutf Ali Khan were made in 188,3 and 1894, and are set out in the record. The deed of 1883 contains no words of exception or reservation, and is ample in point of language to pass all Syad Haidar Reza's interest in the zamindary, including the land on which the bazar was situate. His interest in the houses on that land and in the profit rents derived from them would pass by the deed in the absence of words showing an intention to retain them .... The share of Safdar Reza was sold under the decree of the Court, and the sale certificate of 18 December 1894 shows that all his interest in the property mortgaged by him was sold to the plaintiffs. The description in the certificate is again quite sufficient to pass his interest in the bazar in the absence of any words showing an intention to exclude it.