Babu Tirjugi Prasad Singh and Others vs Premsukh Das and Others

Meredith, J.—This is a plaintiffs'' second appeal. The defendants first party in the suit were the landlords of a holding, of which the defendants second party were the tenants, and of which the plaintiffs had obtained a usufructuary mortgage in the year 1926.

In the year 1933 a suit was brought against the tenants by the landlords for rent of the years 1929 to 1933. A decree was obtained in June 1934, and in execution of that decree the holding was put up to sale, was sold in May 1936, and was purchased by the decree-holders, to whom possession was delivered on 5th January 1937.

The appellants brought the present suit for a declaration of their title as sudbharnadars and for recovery of possession alleging, first, that the decree and sale were vitiated by fraud, and secondly, that the decree amounted only to a money decree, that the sale in execution thereof passed only the right, title and interest of the judgment-debtors, and consequently, did not affect the title of the plaintiffs. It was contended that one of the landlords defendants, Basudeva Narayan, a minor, was not a plaintiff in the rent suit nor was he -a party to the application for execution. Hence the decree was not obtained by the entire body of landlords, and the entire body of landlords did not take out execution. Therefore, in accordance with the provisions of Section 158B, Bihar Tenancy Act, the holding did not pass. Further, it was contended that one of the tenants, a minor, by name Tanik, was not impleaded in the rent suit, and this also had the effect of preventing the decree being a rent decree.

The question of fraud no longer arises as the Courts below have concurrently found that no fraud in the suit or execution proceedings was established.

With regard to the other contentions, the Courts below have held that, in the circumstances of the case, the entire body of landlords and tenants should be taken to have been sufficiently represented in the proceedings, and consequently, the decree and sale had the effect of passing the holding.

The first question that arises is with regard to the alleged non-representation of the sixteen-annas landlords. The facts which have been found are these: One of the members of the joint family comprising the landlords, Gobardhan, died in 1917, leaving a widow, but no son. In September 1934, after the decree for rent had been obtained, Gobar-dhan''s widow adopted Basudeva as a son to Gobardhan. The name of this Basudeva was mutated in Register D in November 1934. This Basudeva was the natural son of the respondent 1 Premsukh Das.

It would appear that the suit was properly constituted as the adoption took place after the decree. But it is pointed out that, if this minor shared in the landlord''s interest after his adoption as son of Gobardhan, he equally shared in it before his adoption as natural son of Premsukh Das.

In my opinion, the fact that there was a minor member of the family who did not join either in the rent suit or in the execution proceedings would not, in the circumstances, have prevented a rent decree and a rent sale. It had not apparently been considered necessary to get the name of this Basudeva previously recorded in Register D. He was represented in the suit by his natural father. When the time came for execution, the course followed was that only those who were actually decree-holders applied for execution. These included the karta of the family and Premsukh Das who, after the adoption, had become the minor''s adoptive uncle. Ever since the death of Gobardhan in 1917 it appears that the remaining members of the family took the rent and represented the landlords'' interest, and, in the circumstances, the fact of the transfer of this minor from his natural father to the position of son of a deceased member would not, in any way, prevent the remaining members from adequately representing the landlords'' interest as before. In my opinion, the entire body of landlords have been rightly held in the present case to have been substantially represented.

With regard to the minor member of the tenants'' family, Tanik, in the present suit he was impleaded by the appellants under the guardianship of his uncle Dwarka. It is, therefore, the appellants'' own case that Dwarka is this minor''s guardian. This Dwarka is also the karta of the family. He was impleaded in the rent suit, and in my view, in his position as karta and guardian he adequately represented the interest of the minor. It is argued that Tanik, being a minor, could not consent to his representation in landlords'' serishta, or in the rent suit, by the other members of the family. I see no reason why he should not be taken to have done so through his guardian and uncle Dwarka, and that, in fact, seems to be what did happen. It was never thought necessary by Tanik''s guardian to get his name recorded in the landlords'' serishta and the landlords, in bringing the rent suit, impleaded all those tenants whose names had been entered in their books. Having regard to these circumstances, I consider the Courts below were right in also holding that all the tenants were sufficiently represented in the suit.

It was sought to be argued for the appellants that no steps had been taken by the landlords as auction purchasers to annul the encumbrance u/s 167, Bihar Tenancy Act. That, however, is a pure question of fact, and as such, the proper place to raise it was before the Courts of fact. It appears, however, that not only was no such question raised in the Courts below, but the contention that the encumbrance was not annulled does not appear even to have been pleaded. Such a contention can obviously not be put forward for the first time in second appeal.

Lastly, it is argued that since the amendments of the Bihar Tenancy Act making holdings transferable, the position of a landlord-auction-purchaser is just the same as that of a stranger auction-purchaser at a rent execution sale. The landlord is no longer able to refuse to recognise the transferee. Therefore, if he is to avoid the encumbrance, he also can only do so, like a third party auction-purchaser, under the provisions of Sections 166 and 167, Bihar Tenancy Act. It is, in my view, unnecessary to examine this contention because even if it is correct, it would merely mean that the landlords would have to take steps u/s 167, and, as I have said, the appellants cannot be allowed to assert at this stage that the landlords did not do so.

In my view, the decision of the Courts below was correct. This appeal is, therefore, dismissed with costs.

Leave to appeal under the Letters Patent is allowed.

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