JHARU MONDAL Vs. KHETRA MOHAN BERA

JUDGEMENT

(1.) The question referred to the Full Bench is whether a purchaser of the whole or portion of a non-transferable occupancy holding who has not been recognised by the landlord has an interest in the holding which is voidable on the sale and so, entitled to make a deposit under Section 170(3) of the Bengal Tenancy Act.

(2.) Section 158B of the Bengal Tenancy Act, provides that where a tenure or holding is sold in execution of a decree for arrears of rent (under the provisions of Chap. XIV of the Act), the tenure or holding shall (subject to the provisions of Section 22) pass to the purchaser. Section 159 lays down that such purchaser shall take subject to certain interests defined as "protected interests" and with power to annul the interests defined in Chap. XIV as "incumbrances." That being so, the holding itself passes to the purchaser, subject only to the "protected interests" and with power to avoid incumbrances.

(3.) In the present case, the petitioner is the unregistered transferee of the holding from opposite parties Nos. 2 and 3 who are recorded as tenants of the holding in the office of the landlord, the opposites party No. 1. The opposite parties Nos. 2 and 3, the original tenants, represent (so far as the landlord is concerned) the ownership of the holding. Sale held in execution of a rent; decree under the provisions of Chap. XIV of the Act would pass to the purchaser the holding itself free of any interest of the unregistered transferee. That being so, the question arises whether the interest of the petitioner can be said to be an interest which is "voidable on the sale." Now, if the interest is extinguished by the sale and ceases to exist, can it be said that the interest is voidable on the sale? There is no doubt that the petitioner had acquired (except against the landlord) an interest in the holding. But if such interest did not subsist after the sale, it is difficult to see how any question can arise of avoiding such interest.