BHIKULAL GOPILAL MAHEAND Vs. BHAIYALAL BENISAO KESARBANI

JUDGEMENT

(1.) ON 13th February 1929 defendant 2 mortgaged his absolute occupancy field to the plaintiffs for Rs. 1000. On 4th November 1930 the landlord obtain-ed a decree for Rs. 107-3-9 including costs against defendant 2 for arrears of rent. The field was sold in execution of this decree and purchased by defendants 1 and 3 for Rs. 510 on 28th November 1931. The plaintiffs have now sued to enforce their mortgage, and the main question in dispute is whether the field was sold free from encumbrances. Section 9(1), C.P. Tenancy Act, (provides that the rent of a holding of an absolute occupancy tenant shall be a first charge thereon and that such holding shall be liable to sale for the satisfaction of such charge in execution of a decree for rent against the tenant, and Sub-section(3) provides that any person claiming an interest in the holding may deposit in the Court executing a decree for rent on account of such holding the amount due under such decree and such deposit shall be credited in satisfaction of such decree. The plaintiffs, therefore, as mortgagees, could have deposited the amount due under the rent decree and thus have saved the property from being sold in execution. They did not do so and it is now contended that they cannot enforce their mortgage as the property was sold free from encumbrances at the execution sale.

(2.) IN support of this contention we have been referred to the opinion of Sir B.K. Bose which is printed at p. 191 of Barway's Law of Tenancy. On the other hand there is the decision of Kinkhede A.J.C. in Asaram v. Kanchedilal AIR 1927 Nag 119 and of Gruer J. in Ganba v. Ganpatsao Second Appeal No. 339 of 1934 that an absolute occupancy field which has been sold in execution of a rent decree is not sold free from encumbrances. This view is accepted in Barway's Law of Tenancy, in Brahmarakshas's C.P. Tenancy Act, and impliedly in Kathalay's Land Revenue Act at page 531. What was sold in execution of the rent decree was the interest of the judgment-debtor and he held the holding subject to the mortgage which he had created. The ordinary principle is that a purchaser cannot get a better title than that possessed by his vendor, and, in the absence of any specific provision, I think that it must be held that the holding was not sold free from encumbrances. In Section 138, C.P. Land Revenue Act of 1917, it is specifically provided that any estate, mahal, share or land sold for arrears of land revenue due in respect thereof shall be sold free from encumbrances, but there is no such provision in Section 9, C.P. Tenancy Act, which was passed only three years later. If the Legislature had intended that an absolute occupancy holding sold in execution of a rent decree should be sold free from encumbrances, it would have been very easy for it to say so and, in the absence of such provision I think that it must be held that it is not sold free from encumbrances. The appellants took the objection that the mortgage deed had not been properly attested. Punjaji (P.W. 1), one of the attesting witnesses, said that the executant signed in their presence and that then he and the other attesting witness then attested it. It is clearly implied that the attesting witnesses attested in the presence of the executant, and this point was apparently not argued in the lower Appellate Court, nor does it form a ground of appeal in this Court. I think that there is no substance in it.

(3.) I agree and would add a few observations. Under the Tenancy Act of 1898 it was provided in Section 43 that the rent of the holding of an absolute occupancy tenant should be the first charge on that holding which should, subject to the other provisions of that Act, be liable to sale in execution of a decree for arrears of the rent thereof. It was held in Bhagwandass v. Tarachand (1901) 14 CPLR 17 at p. 19 that the word 'charge' had much the same meaning as the same word used in Section 100, T.P. Act. It was decided that it was open to a landlord to institute a suit for the sale of the property charged in which case all persons having an interest in the said property must be joined as parties and that if a decree for sale were obtained and the holding sold in pursuance of that decree then the purchaser would undoubtedly take the holding free from all incumbrances. Under Section 9 of the Act now in force a simplified procedure is allowed. It is provided that notwithstanding anything contained in Section 100, T.P. Act, 1882, and Order 34, Schedule I, Civil P.C., 1908, such holding shall be liable to sale for the satisfaction of the charge for rent in execution of a decree for rent against the tenant whether such decree orders such sale or not; while Sub-section (3) provides that any person claiming an interest in the holding may deposit in the Court executing a decree for rent the amount due under such decree.