Akhil Chandra Chowdhury vs Jatra Mohon Sen

The main question raised at this rehearing is whether the right that is given to the auction-purchaser of an entire estate in the permanently settled Districts of Bengal, Behar and Orissa sold for arrears of revenue, u/s 37 of Act XI of 1859, to avoid and annul an under-tenure, is a right that must be exercised by all the purchasers jointly where there are more purchasers than one, or whether it is open to anyone of a number of co-purchasers to enforce that right. The lower Appellate Court has taken the former view as being the one that is in accordance with the true meaning of the Section; and it has accordingly been held that it was not competent to the defendant No. 1, who was one only of a body of purchasers by whom the estate had been purchased, to defeat the plaintiff''s right as Talookdar. Against that judgment this second appeal was preferred; and in our former judgment we held that the view taken by the Subordinate Judge was wrong and that, u/s 37 of Act XI of 1859, any one of several purchasers of an entire estate sold for arrears of revenue was competent to avoid an under-tenure subordinate to the estate, although the other co-purchasers might not join him. We held that the object of Section 37 was simply to protect the public revenue and that to secure that object, it gave to the purchaser of an entire estate as distinguished from a purchaser of a share of an estate sold for arrears of revenue as provided in Section 53 of the Act, the right to avoid encumbrances and under-tenures and to take the estate in the condition in which it was at the time of the permanent settlement. In taking that view, we omitted to take into consideration one other wholesome purpose that the language of Section 37 was intended to serve, viz., the purpose of preventing hardship to holders of encumbrances and under-tenures, such as they would be subjected to, if, where more persons than one purchase an estate, it was competent to any one of them to set aside an encumbrance or an under-tenure notwithstanding that his co-purchasers might be unwilling to join him in doying so. This matter was taken into consideration in the unreported case to which we have referred, viz., Bongo Chandra Mazumdar v. Broja Mohan Haldar Appeal and appeal decree No. 1712 of 1892 (unreported) in which there occurs the following passage in the judgment :--" If we could feel sure that the only object of section 37, was that referred to above, we should be bound to attach the greatest possible weight to this argument. But it is not unreasonable to suppose that, besides the one mentioned above which is no doubt its primary object, the section has been intended to secure also certain other objects, such as the prevention of undue inconvenience and hardship which might arise from subjecting the holders of encumbrances to a multiplicity of suits by different purchasers at one sale or to suits for partial cancellation of encumbrances at the instance of some out of several co-purchasers when the others are unwilling or, (as in this case) incompetent to effect such cancellation. And if that is so, we must hold that the language of the section has advisedly been made what it is, and we must construe it literally." The same view has been taken in the case of Dwarka Nath Pal v. Gins Chandra Bandopadhya ILR 6 Cal. 827 and it has our full concurrence. We may add that stringent provisions like that laid down in section 37 of Act XI of 1859, have always been construed strictly and in favour of holders of encumbrances and under-tenures so as to prevent hardship as much as possible. We need only refer to the decision of the Judicial Committee in the case of Rani Surnomoyee v. Maharaja Satish Chandra Roy Bahadur 10 Moore I.A. 126. Babu Hari Mahan Chakravarty for the Appellant Defendant No. 1 contended that though this may be true for those cases where an auction-purchaser is the plaintiff and seeks to avoid a tenure, the same rule ought not to hold good where the auction-purchaser is not a plaintiff, seeking to cancel an under-tenure but is only a defendant resisting the claim of an under-tenure holder to recover possession. We are unable to accept this contention as correct. It has been found in this case that the Plaintiff, Respondent before us, owned a taluk and that his right as proprietor of that taluk has not been affected by the law of limitation. His right as Talookdar must, therefore, be held to be a subsisting right unless it is shown to have been avoided by the revenue sale at which the appellant became one of the purchasers. The appellant failed to show that he was the sole purchaser or that defendants No. 7 and 8 who, according; to the plaintiff, were some of the purchasers, have not acquired any right as auction-purchasers; in other words he has failed to show that he represents the entire body of auction-purchasers. The defendant No. 1 has also failed to show that anything was done by the entire body of auction-purchasers to avoid the plaintiff''s taluk. That being so, in the view we have taken of sec. 37, that taluk must be held to be a subsisting taluk, and the plaintiff must be held entitled to recover upon the strength of his title as a proprietor of that taluk. The result then is that the decree of the lower Appellate Court will be affirmed and this appeal dismissed with costs. The costs will include two hearing fees.