RAJANI KANTA DEB Vs. BASHIRAM MESTARI

JUDGEMENT

(1.) In this case the plaintiff brings his suit for arrears of rent and he is met with a defence to the effect that the suit for rent is bad because the plaintiff has title only to four annas share of the superior interest and he has not proved or did assert any right to a separate collection of his share of rent. The suit not being brought in accordance with the special provisions of the Bengal Tenancy Act which enable a cosharer by suing the other cosharers to claim a part of the rent the whole suit is defeated unless the plaintiff can show himself to be entitled to sixteen annas of the rent. Mr Brojo Lal Chakarvarty for the appellant does not dispute that proposition as a matter of law. The contest in this case is whether or not the learned Subordinate Judge has correctly dealt with the issues which arise upon the question whether or not the plaintiff has made out his title to the whole of the rent.

(2.) Now it appears that at first sight there is something startling about the way in which the Courts below have dealt with this case. It would appear that Dolegovinda was a mukhtear and according to the findings of fact he had an elder brother Radha Kanta who had an even larger practice as a mukhtear than himself. He bought this property now in question in 1884. He took the conveyance in his own name. He got it entered in the books of the Collectorate in a separate account in his own name. He took kabuliats from these very tenants or their predecessors in his own name. It appears that at least on one occasion he took for himself the money which represented a land acquisition award. Then after his death when his representatives had sold to the plaintiff these tenants set up this defence that the whole suit was bad because the property as a matter of fact did not belong to Dolegovinda but belonged to the family of which Dolegovinda was merely one member. That certainly seems to me paradoxical and I must say that I have examined the judgments of the Court below with some care to see whether it is really in accordance with the correct view of the law.

(3.) Mr. Brojo Lal Chakravarty for the appellant takes three objections. First of all he says that there is a part of a compromise deed which is void for want of registration but which nevertheless is admissible in evidence as an admission by the brother and cousins of Dolegovinda that this property belonged to Dolegovinda alone. He says that that is a matter which the Court below has brushed aside under the impression apparently that for want of registration the document can be looked at for no purpose. In the second ploce he says that under Section 41, T.P. Act, the Courts below have brushed aside his client's claim to be treated as a purchaser for value without notice on the ground that he made no proper enquiry into the title. He says that if one looks at the decisions in Gholam Sidhique Khan V/s. Jogendra Nath A.I.R. 1926 Cal. 916 and in MacNeil & Co. V/s. Saroda Sundari Debi one would find that one cannot defeat a claim to the protection given by Section 41 without definitely showing what circumstances there were to put the purchaser upon enquiry, what facts would have been found out by enquiry and so forth. Complaint is made that this matter has not been properly dealt with as a matter of law. The third complaint which is made is that the judgment of the Subordinate Judge misplaces the onus of proving that the self-acquired property of Dolegovinda was thrown into the common stock.