JAGARNATH PRASAD SINGH Vs. CHHATHU SAH

JUDGEMENT

(1.) This appeal by the defendants first party has been referred to a Division Bench for decision by Jafar Imam J. The principal question for decision is whether an oral sale by a mortgagor to the usufructuary mortgagee passes title.

(2.) It is unnecessary to state the facts beyond this that on 9 June 1933, the defendants second party executed a registered zarpeshgi bond in favour of defendants third party for Rs. 81 and put them in, possession. On 9 February 1935, the defendants second party made an oral transfer to defendants third party for Rs. 96 of the same lands?out of the consideration, Rs. 81 was set off towards the zarpeshgi amount and balance was made over to the mortgagor vendors. It is argued that this oral sale did not pass any title to defendants third party because they should have taken a registered instrument. Attention was drawn to Section 54, Transfer of Property Act and to the decision of the Allahabad High Court in Sohan Lal V/s. Mohan Lal . But there is a direct contrary decision of a Division Bench of this Court reported in Pheku Mian V/s. Syed Ali , where it has been held that in circumstances similar to those that exist in the present ease, title will pass by the oral sale in favour of the usufructuary mortgagee in possession. Mr. Jha invited us to hold that this decision was erroneous in law in as much as the decision of the Full Bench of the Allahabad High Court was approved by the Privy Council in Gobind Ram V/s. Madan Gopal . But having perused the judgment of their Lordships in that case, we do not find any indication that they approved of the correctness of the decision of the Allahabad High Court. For these reasons, we are bound to follow the decision of the Division Bench of this Court and decide this point adversely to the appellants. The plaintiffs derived their title by a registered sale deed from the defendants third party on 9 July 1940. That title is thus complete and cannot be questioned.

(3.) The other point raised by Mr. Jha was that the Courts below were wrong in holding that the defendants first party were purchasers of the same land in execution of a money decree whereas it should have been held that the suit No. 996 of 1936 which was for recovery of arrears of rent for 1340 to 1345 Fasli resulted in a rent decree. But having perused the facts found at p. 11 of the judgment, it is clear that the suit was for recovery of rent of 17 bighas odd for the year 1340 and for a lesser area in the following three years, and that the other co- sharer who was interested in the remaining portion of 17 bighas odd was not included as a pro forma defendant. The Courts below, therefore, have rightly held that the decree was not a rent decree but a money decree, and the sale in execution thereof merely passed to the appellants the right, title and interest of the judgment-debtor,