SERAJGANJ LOAN OFFICE CO LTD Vs. SASIMUKHI DEBI

JUDGEMENT

(1.) This appeal is on behalf of defendant 9, in a suit instituted by the plaintiff-respondent to enforce her charge for maintenance on the properties described in Sch. Ka of the plaint which consists of many items of property. In this appeal I am only concerned with item 11 of the said schedule. Jadav, Satish and Purna, the husband of the plaintiff, were brothers. They had inherited from their father immoveable properties, which included a patni taluk held under Jogesh Chandra Chowdhury. On Purna's death his widow, the plaintiff, inherited his properties in which she had the estate of a Hindu widow. Jadav and Satish were her husband's reversioners. On 23 January 1890 she surrendered her estate in favour of Jadav and Satish. Whether the deed operates as a complete relinquishment under the Hindu law or not is not material for this appeal, for by the document of transfer it cannot be doubted that she at least transferred her life estate in favour of Jadav and Satish. In consideration of the said transfer Jadav and Satish executed on the same date a deed in her favour by which they promised to pay her maintenance at the rate of Rs. 18 per month and charged the properties of the said Sch. Ka for the same. Defendants 1, 3, 4, 7 and the father of defendants 2, 5 and 6 who were the heirs of Jadav and Satish borrowed money from defendant 9, the Serajgunj Loan Office, and on 21 September 1923 executed in favour of the latter a mortgage securing the re- payment of the loan. The patni taluk held under Jogesh Chandra Choudhury as also some other items of property of Sch. Ka was included in this mortgage. Defendant 9 instituted a suit on the mortgage, obtained a decree, and in execution of the same purchased the said patni taluk and some of the other mortgaged properties. Defendants 8 and 10 to 20 have purchased the remaining items of Sch. Ka. It is the finding that the purchases made by defendants 8 to 20 of the different items of Sch. Ka were with notice of the plaintiff's charge. The properties purchased by them have been declared by both the Courts below to be charged with the arrears of maintenance claimed by the plaintiff in the suit and a decree for sale has been made. This decree so far as it relates to the properties of Sch. Ka other than item 11 has not been challenged before me. The only controversy is with regard to item 11. Defendant 9, who is the appellant before me, assails the judgments and decrees of the Courts below relating to this item. Item 11 is described in the plaint as a putni taluk held by defendant 9 under Jogesh Chandra Chowdhury.

(2.) The facts bearing upon this controversy are as follows: The putni taluk charged by the deed of 23 January 1890 was purchased by defendant 9 at the sale in execution of its mortgage decree on 20 November 1931. This sale was confirmed on 23 January 1932. In the meantime Jogesh Chandra Chowdhury had instituted a suit for recovery of arrears of rent of the said putni taluk. He obtained a decree for rent and put it in execution under the special procedure of Ch. 14, Bengal Tenancy Act. At the Court sale he, Jogesh Chandra Chowdhury, purchased the putni taluk on 17 November 1931. The said sale was confirmed on 4th January 1932. As Jogesh Chandra Chowdhury purchased the putni taluk at a rent sale before the sale at which defendant 9 purchased the same, the title to the said putni taluk vested in Jogesh Chandra Chowdhury with power to annul incumbrances upon it. Jogesh Chandra Chowdhury thereafter on 19 June 1932 granted a putni taluk in respect of the lands covered by the putni which he had purchased at the aforesaid rent sale to defendant 9 at the old rent. Thereafter on 16 July 1932, about a month after the grant of this putni by him to defendant 9, he filed an application in the civil Court under the provisions of Section 167, Bengal Tenancy Act, to annul the charge for maintenance of the plaintiff which had been created on the putni taluk purchased by him by the deed which Jadav and Satish had executed in favour of the plaintiff on 23 January 1890. The notice contemplated by Section 167, Tenancy Act was served on the plaintiff through Court on 8 August 1932. Defendant 9 contends that the plaintiff's charge is no longer existing on the putni taluk which was created in its favour by Jogesh Chandra Chowdhury on 19 June 1932. Both the Courts below have repelled the contention, the lower appellate Court holding that Jogesh Chandra Chowdhury was not entitled to file the application under Section 167, Tenancy Act, on 16 July 1932, after he had granted the putni to defendant 9. The question is whether this view is correct. In my view it is not.

(3.) It is necessary to bear in mind that the putni taluk which was granted by Jogesh Chandra Chowdhury to defendant 9 on 19 June 1932 is not the putni taluk which was charged in the year 1890 with the maintenance of the plaintiff. It is a new interest altogether. If at the rent sale held on 20 November 1931 the charged putni taluk had been purchased by another person, say P, with notice of the charge, the said putni taluk in his hands would have been charged with the plaintiff's maintenance till that person P had avoided the charge by serving a notice on the plaintiff under Section 167, Bengal Tenancy Act. If P failed to proceed in accord, ance with that section within the time allowed the putni taluk in his hands could be sold at the instance of the plaintiff for her claims in enforcement of her charge. If before that contingency P granted to defendant 9 a darputni or any another permanent tenure the plaintiff's charge would-not have shifted from the putni taluk in the hands of P to the darputni or permanent tenure created by P in favour of defendant 9. It may be that the purchaser of the charged putni taluk at a sale held at the instance of the plaintiff for enforcing her charge would not take it subject to this darputni or permanent tenure if at the time of the creation of the darputni or permanent tenure defendant 9 had notice of the charge, but that would be on a principle analogous to the principle on which a permanent lease or tenure created by the mortgagor after the mortgage is held to be not binding on the mortgagee or the purchaser at the sale held in enforcement of the mortgage. Notwithstanding the creation of the darputni or permanent tenure, P would be the person affected by the plaintiff's claim as being the owner of the charged putni taluk. In these circumstances I fail to see why he would lose the right of serving a notice under Section 167, Tenancy Act, on the plaintiff annulling her charge simply because before applying under the said section to the civil Court he had created a permanent tenure under his putni taluk.