Dwarika Nath Karmakar vs Jasoda Devi and Others

Kulwant Sahay, J.—This is an appeal by defendant 1 and it arises under the following circumstances Defendants 3 to 7 executed a usufructuary mortgage in favour of defendant 1, on the 26th January 1914, for a sum of Rs. 500. On the same date defendant 1 took a kabuliyat from defendants 3 to 7 in respect of the property covered by the mortgage-bond for a period of five years on the promise that defendants 3 to 7 would pay him 45 maunds of paddy per year. The result was that, although defendant 1 took the usufructuary mortgage of the property in dispute, he did not obtain actual possession thereof; but the mortgagors continued in possession under the kabuliyat executed on the same date as the mortgage. The defendants, however, did not pay the rent fixed under the kabuliyat and defendant 1 had to bring a suit against defendants 3 to 7 for realization of the rent. This suit was instituted some time in 1915 and a rent decree was passed, and in execution of the decree the interest of defendants 3 to 7 was sold and purchased by defendant 1 on 13th November 1915, and defendant 1 obtained possession in December 1915.

The important question to be decided in the present appeal is as to what was the interest which was sold in execution of this decree. Subsequently defendants 3 to 7 instituted a suit against defendant 1 to set aside the mortgage on the ground that the property mortgaged was the right of a raiyat in a holding and that such a mortgage was invalid under the provisions of the Chota Nagpur Tenancy Act. This suit was dismissed on the ground that the property mortgaged was not a raiyati holding but a tenure. Defendants 3 to 7 then sold their equity of redemption to the present plaintiff who instituted the present suit for redemption of the mortgage of the 26th January 1914.

The defence of defendant 1 was that the equity of redemption had already been sold in execution of the decree obtained by him in 1915 and that the plaintiff''s purchase of the equity of redemption did not pass any interest to him as nothing was left to defendant 3 after the sale of November 1915. Both the Courts below have held that what was sold was the right of defendants 3 to 7 to remain in possession under the kabuliyat of 26th January 1914, and the equity of redemption was not sold in execution of the decree obtained by defendant 1. The plaintiff''s suit for redemption was, therefore, decreed.

In this second appeal, on behalf of defendant 1, it is contended that the relationship created by the kabuliyat was not that of a landlord and tenant, but the relationship between the parties was that of a mortgagor and mortgagee, and that the decree obtained by defendant 1 was not a rent decree, and what was sold was not a raiyati interest which defendants 3 to 7 never had, but what was actually sold was the equity of redemption which defendants 3 to 7 had under the mortgage of 26th January 1914.

It is, therefore, contended that what was purchased by defendant 1 was the equity of redemption. It is conceded that the sale, if it was a sale of the equity of redemption, was irregular. It was a voidable sale and it is contended that the remedy of the plaintiff or his predecessor-in-title was to bring a suit to set aside the sale and that such a suit was barred, and, therefore, the present suit is also barred. Now, in order to decide whether the suit is barred by limitation, the question to be decided is as to what was sold in November 1915. The best evidence as regards the nature of the title which was acquired by defendant 1 by virtue of his purchase of November 1915 is the sale certificate. The sale certificate describes the property as "the right to possess khas."

It is contended that this was not a raiyati interest; but the right which defendants 3 to 7 had was to redeem the mortgage. I am of opinion that such a construction cannot be placed upon the sale certificate. The sale purported to be effected in execution of a rent decree under the provisions of Section 208, Chota Nagpur Tenancy Act, and a sale u/s 208, Chota Nagpur Tenancy Act, can only pass the interest of the judgment-debtor in the tenancy in respect of which the rent decree was passed. It may be that the position of defendants 3 to 7 was not that of an under-tenure-holder or an under-raiyat under defendant 1 but as between defendant 1 and defendants 3 to 7 the relationship, which defendant 1 himself asserted did exist, was that of landlord and tenant, and he purported to bring a suit for rent in the revenue Court under the rent law and purported to sell the interest of defendants 3 to 7 as tenants under him. The sale certificate goes to show that what was sold was the right of defendants 3 to 7 to remain in possession of the land. This evidently referred to the right which defendants 3 to 7 acquired under the kabuliyat of 26th January 1914. Defendant 1 never purr ported to sell the equity of redemption and he did not by his purchase acquire the equity of redemption. What he acquired was the right to remain in possession for the remaining period of the term under the kabuliyat of 26th January 1914. This is the finding of both the Courts below, and in my opinion this is the correct finding. Having regard to this finding it is not necessary to discuss the cases referred to by the learned advocate for the appellant as those are cases in which it was the equity of redemption which the decree-holder purported to sell, and the question arose as to whether the relationship between the parties was that of a mortgagor and mortgagee or that of a landlord and tenant. In the present case the equity of redemption was not intended to be sold and was not, as a matter of fact, sold.

The appeal is dismissed with costs.

Macpherson, J.

I agree.