Bacha Singh vs Daro Singh

Courtney-Terrell, C.J.—This appeal depends for its decision upon the construction of Sections 148-A and 158-B (2), Ben Ten Act.

The facts are as follows: The plaintiff-appellant sued for enforcement of a mortgage of an occupancy holding executed in his favour by the father of defendant 1. He impleaded the mortgagors and subsequent purchasers. One of the latter, defendant 7, defended on the ground that he had purchased in execution of a decree for rent obtained by two of the seven cosharer landlords and that he had duly annulled the encumbrances u/s 167, Ben Ten Act, so that the right of the mortgagee-plaintiff was extinguished. The material facts as to the suit for rent are as follows: The two cosharer landlords who had sued representing a seven annas interest recited in their plaint that they had been unable to discover the amounts, if any due to the other maliks and impleaded the other maliks as defendants. Two of them were in the course of the suit joined as plaintiffs, the other three remaining defendants. Eventually a decree was passed for the rent claimed by the two maliks who instituted the suit the proportional shares of the other maliks being merely noted in the margin of the decree. In the heading of the decree the names of all the cosharers are set forth as plaintiffs and the claim is stated as follows:

Claim for recovery of Rs. 82-12-0 on account of principal amount of rent with cess and damages from 1325 F. to eight annas kist of 1328 F. of the yearly rent of Rs. 42-2-6 with cess in respect of 11 bighas 1 cottah 6 dhurs of land situate in Mauza Batharni.

In this mortgage suit by the plaintiff-appellant the Subordinate Judge has held that the rent suit did not comply with the terms of Section 148-A, Ben Ten Act, and that the decree was not for the consolidated amount of the rent due to all the 16 annas landlords but was a decree in favour of the two cosharers only who had brought the suit and was for their specific share and that it was accordingly not a rent decree but a money decree only and that the purchaser at the auction sale in execution had no power to annul the encumbrance held by the plaintiff. The decision of the first appellate Court and that of the single Judge of this Court in second appeal was against this view of the rent suit and decree, both of these Courts holding that Section 148-A had properly been complied with and that the decree was a rent decree in accordance with that section.

The second point set up by the plaintiff and upheld by the Subordinate Judge was that the defendants had not proved service of the notice of sale as required by Section 158-B (2), Ben Ten Act, inasmuch as the peon''s report merely stated that the cosharer had not been found and that the notice had been affixed to his house. It was contended that the defendants should have proved that resort had not been had to the procedure of affixing the notice to the door until search for the cosharer had been made by the peon with resultant failure to find him. It was held that this notice, not having been served, invalidated the sale and that the mortgagee-plaintiff was entitled to rely upon this defect.

The operative part of the decree was as follows:

It is ordered and decreed that this suit be decreed inter partes with costs and future interest at 6 per cent per annum in favour of the plaintiff (sic). and that the sum of Rs. 92-12-0 decretal amount and Rs. 31-3-0 costs on account of the costs of this suit with interest thereon at the rate of 6 per cent per annum from this date to date of realization be paid by the defendant to the plaintifis (sic).

Account Rs. As. P. Share of Sukdeo Singh and Jangi Singh 25 14 0 Mahabir Singh 51 13 3 Sugo Singh and Ramsadagar Singh 25 14 6 Account Share of the plaintiff 92 12 3 Costs 31 1 0 _____________ 123 13 0 _____________ 6. The decision of the Subordinate Judge on this point also was reversed by the first Court of appeal and by this Court in second appeal. As to the first point it was argued before us that a rent decree u/s 148-A must be a decree for the whole of the outstanding rent and that the mention in margin of the decree of shares of other cosharers made it a decree in favour of the amount due to the plaintiff-cosharer only which it was said was not contemplated by Section 148-A. In my opinion this view of Section 148-A is erroneous.

The object of the section is quite clearly to protect a plaintiff-cosharer landlord against refusal or neglect by his cosharers to enforce their claims to rent so depriving him of the advantages to be obtained from a rent decree as opposed to a money decree. All that is necessary is that a cosharer landlord should state in his plaint that ha is unable to ascertain the entire amount of rent outstanding to all the cosharers owing to the refusal of the tenant or the other cosharers to furnish him with correct information. He must implead his cosharers and then the

plaintiff-cosharer landlord shall be entitled to proceed with the suit for his share only of the rent, and a decree obtained by him in a suit so framed shall, as regards the remedies for entering the same, be as effectual as a decree obtained by a sole landlord or an entire body of landlords in a suit brought for the rent due to all the cosharers.

The meaning and object of the section was considered in this Court in the case of Ram Dhyan Singh v. Pardip Singh [1918] 4 P. L.J. 500 by Manuk, J. The learned Judge stated:

I am of opinion that the essential principles underlying that section are: (1) that the suit should, in form, be for the whole rent and in substance for the separate share of rent in arrears, (2) that the whole body of landlords are impleaded, with the allegation that the plaintiff has not been able to ascertain what, if any rents are due to the former. In such cases the whole rent due must, in the nature of things, be always a matter of speculation for the plaintiff and he is entitled to assert that he believes that his share of the rent due is the entire rent due and ask the Court to decide on the accuracy of that belief, if and when the impleaded cosharers appear and claim any arrears as due to themselves. If his belief is accurate the Court will give him a decree for his share of the rent only as being the entire rent due; if inaccurate, the Court will investigate and decree the arrears due to the impleaded cosharers as well.

In accordance with the principles stated by Manuk, J., the Court which tried the rent suit did investigate the matter and clearly gave to the plaintiff a decree for his share of the rent only. This decree was made in the presence of all the cosharers and neither the other cosharers nor anyone else is entitled to question it either by stating that the decree was not for the entire rent due or otherwise. If the other cosharers had considered that some rent was outstanding and due to them they should have raised it in this suit. On the one hand therefore the decree was a decree for the entire rent due and in any case the words of the section are plain and even if the other cosharer landlords had not felt inclined to claim their shares the section allows the plaintiff cosharer landlord to proceed with the suit for his share only of the rent and makes a decree for such share just as effectual as if it had been obtained by the entire body of landlords in a suit for the rent due to all of them. The rent suit and the decree were therefore in accordance with Section 148-A and the purchaser in execution was entitled to annul encumbrances.

The second point relied on by the plaintiff is based on the contention that the failure to effect notice of the sale required by Section 158-B(2) was an illegality which rendered the sale absolutely void. In my opinion his contention is equally unfounded. The object of the Sub-section is the protection of the cosharers and if it is not complied with, they and they alone, have a grievance and it is not open to a third party to take advantage of that grievance and allege that the sale is wholly invalid. The failure to effect notice is a mere irregularity and the only person entitled to complain of it is the cosharer affected. It is open to a cosharer to waive the benefit of the section.

Now an illegality which would make the sale void cannot be the subject of waiver by anybody. The principle was clearly explained by Mookerjee, J., in Rajani Kanta Ghose and Others Vs. Sheikh Rahman Gazi and Others, . Both objections to the execution sale urged by the plaintiff-appellant therefore fail, and I would dismiss this appeal with costs.

Kulwant Sahay, J.

I agree.