Firangi Rai and Others vs Chheddi Pandey and Others

Foster, J.—The plaintiffs and defendant No. 9 are descendants of Jaipal Pandey whose estate came into their possession. It consisted in part of 30 bighas 17 cattahs and 11 dkurs of raiyati kxskt within the zemindary of the defendants second party. The plaintiff''s family, which has been found to have been joint consists in two branches; in one Chheddi Pandey, plaintiff No. 1, is the sole male surviving, and in the other defendant No. 9 and his three sons, plaintiffs Nos. 4, 5 and 6 are the only males. The plaintiffs are seeking to avoid the consequences of a mortgage of the said holding along with the rest of their patrimony effected by defendant No. 9 on the 29th August, 1905, in favour of the defendants first party. There was first a mortgage-decree in 1914 on foot of the same mortgage; then a sale in execution of that decree, in which the mortgagee-decree-holders, that is the defendants first party, were the purchasers. Then followed a suit by the landlords, defendants second party, against the defendants first party alone for possession of the holding on the ground of abandonment by the tenants (there being no custom of transferability of holdings in the village). Ultimately after institution of the present suit the landlords obtained a decree against the mortgagees in the Appellate Court and took out delivery of possession during the pendency of the present suit. It is that which has led to the amendment of the plaint by which the plaintiffs have substituted in place of a prayer for confirmation of possession a prayer for recovery of possession against the landlord. So the plaintiffs are seeking for recovery of possession of their share of the holding. The second party defendants, the landlords, alone are contesting the suit.

The evidence shows that plaintiff No. 1 was in 1923 aged 20 and plaintiff No. 4 was then aged 25 years. Plaintiffs Nos. 5 and 6 were then minors. It will be seen, therefore, that at the time of the mortgage and indeed at the time of the mortgage suit and decree, the plaintiffs Nos. 1, 4, 5 and 6 were all minors. The evidence shows, however, that the father of the first plaintiff Ambica was alive at these dates. It has been found in the lower Appellate Court that. the plaintiffs were always in possession of the holding and that their share therein, of which they were in possession, amounts to fourteen-sixteenths until they were dispossessed by the landlords, defendants second party, after the institution of the present suit; that Mahabir, defendant No. 9, was karta of the family, that he had no family necessity or other justification for mortgaging the family property; that in the mortgage suit the joint family was not represented by Mahabir; that the decree Was not binding on others than Mahabir; that up to 1919 the landlords treated the plaintiffs as tenants; that meanwhile the plaintiffs were recorded in the revisional Record of Rights as the tenants of the holdings after and in spite of the formal delivery of possession to the mortgagee-decree-holders in 1917; lastly, that there was in fact no abandonment of the holding by the plaintiffs. The suit has been decreed in both Courts and the landlord-defendants are appealing.

It appears to me that the appeal is concluded by findings of fact. The plaintiffs are suing as occupancy raiyats their landlords for recovery of possession. The landlords are in possession. They dispossessed the plaintiffs. These are to be found as findings of fact in the judgment of the lower Appellate Court. Now, the plaintiffs are bound, if they are to succeed in the present case, to show a better title than the defendants. The reason, in my opinion, why they are able to show abetter title is because they are occupancy raiyats having the favourable rights which are conferred upon them by the provisions of the Bengal Tenancy Act. It is to be remembered as a finding of fact that the landlords dispossessed the tenants who are now suing. Now Section 89 of the Bengal Tenancy Act lays down that no tenant shall be ejected otherwise than by a decree of the Court. Section 25 is to the same effect but much more rigorous, inasmuch as it refers to the special case of an occupancy raiyat. An occupancy raiyat cannot be ejected from his holding except in execution of a decree for ejectment passed on the ground: that he has used the land comprised in his holding in a manner which renders it unfit for the purposes of the tenancy, or that he has broken a condition on the breach of which he is under his contract liable to be ejected.

These two sections form the charter of the occupancy raiyats in this Province, and that is what gives the plaintiffs the right to sue their landlords for recovery of possession. There are three methods by which a landlord, subject to the Bengal Tenancy Act, can obtain possession of an occupancy raiyafs holding (a) on a decree of the nature described in Section 25 which I have just quoted; (b) on relinquishment or surrender in the manner described in Section 86; (c) on abandonment as in Section 87 of the same Act. Now, the landlord in this case never got a decree against the occupancy raiyats, the plaintiffs, or defendant No 9. In his written statement he stales categorically that his title to the holding is based on the tenants'' abandonment. This is to he seen in paras. 13 and 16 of the written statement. That contention is precluded in this Court by the finding of fact that there has been no abandonment. The learned District Judge has found: "In the circumstances am satisfied that the plaintiffs had all along been in possession till they were dispossessed by the landlords during the pendency of the present suit. I, therefore, hold that there has been no abandonment of the holding by the plaintiffs." It has been suggested in the course of argument that the fact that the mortgagees in execution of their decree put the holding to sale was in itself sufficient to constitute an abandonment. But that is not a proposition to be found supported by law. The elements of abandonment are to be found in numerous authorities which can be found in any commentary of the Bengal. Tenancy Act and in the terms of Section 87 itself. There must be voluntary abandonment of residences by the tenant without notice to the landlord and without an arranging for payment of the rent as it falls due and cessation of cultivation of the holding either by himself or by some other person. Where abandonment occurs it is no doubt the landlord''s undeniable right to reenter. But the mere fact that the plaintiff''s holding was put to sale and purchased and that the holding was non-transferable does not go far enough to constitute proof of abandonment. We know from the judgments and the mortgage-bond that is on the record that the properties which were mortgaged were not only these nontransferable kasht lands but also some 18 bighas of biril as to the transferability of which we have no specific information, but we can from general conditions suppose that the tenure is transferable. At any rate we see the tenants in possession of the holding ever since the date on which Mahabir executed the mortgage and, of course, before that too. Now, if there was no abandonment, it is difficult to see how the landlords can make even a step forward towards success in the present case. As I have shown before, the plaintiffs'' title as occupancy raiyats it, a superior title and should prevail. All the discussion of the mortgage suit and its consequence were only relevant (so far as the present appellant-landlords were concerned) on the issue whether the landlords'' possession was justified by the tenants'' abandonment. Had the plaintiffs sold their non-transferable occupancy holding even involuntarily to the mortgagees and vacated the holding without their landlords'' consent then there would have been abandonment. But on the findings of fact that is not the case. However, I will proceed to deal with the points that have been raised in respect of the mortgage-decree.

It is urged that Mahabir, the karta of the family, executed the mortgage-bond for legal necessity. But that contention is precluded by the findings of fact. It was also urged that Mahabir represented the family in the mortgage suit, the result of which bound the plaintiffs. That will not avail much unless the mortgage-decree resulted in the ejectment of the plaintiffs and the transfer of the holding to an unauthorised transferee. It is urged that the decree, which was by consent, bound Chheddi Pandey, the plaintiff No. 1, who was then a minor. I have not been able to gather how Chheddi would be bound, it haying been found that although he was brought in nominally as a party to the consent decree, his signature was made by Jagdish Pandey who, it is found by the lower Court, had an interest adverse to him. But it is said that by this consent decree a consideration was passed which conferred benefit on the whole family. A subsequent mortgage of Rs. 700 which was for the benefit of the family was to be paid off by the mortgagees as well as the mortgage then under suit. This point has not been argued in the lower Court at any length, but we see in the judgment that it has been found that Mahabir did not in fact represent the family and Jagdish signing on behalf of Chheddi could not represent Chheddi. There is no finding that I can find anywhere that the subsequent mortgage of Rs. 700 was a debt incurred for the benefit of the family and that the family received benefit by its liquidation. But even supposing that this consent decree was partly for the benefit of the joint family and supposing that as regards the mortgage under suit, the sons of Mahabir would be bound because their father was paying an antecedent debt, what progress will the appellant''s case make unless they can prove that it led up to an abandonment of the nontransferable holding? These arguments would benefit perhaps the mortgagees, but they have not come to Court to contest the suit; although in th.9 first relief claimed in the plaint the plaintiffs pray that the Court may be pleased to declare that the lands in suit are the kisht lands of the plaintiffs and that defendant No. 9 had no right to mortgage the earns nor ware the defendants first party entitled to put the same to sale under their decree; that the decree and the mortgage-bond in the name of the defendants first party may, for the reasons set forth in the plaint, be declared to be inoperative and invalid as against the plaintiffs and that the same may be set aside.

Next it is urged that the plaintiffs are estopped from saying that the sale in execution of the mortgage-decree was not valid as against them. Here again it is difficult to see how a finding against the plaintiffs on this point can help the landlords in their present suit, which after all is from beginning to end governed by the conditions of the Bengal Tenancy Act. Moreover, in regard to the issue of estoppel it must be remembered here that the lower Appellate Court has recorded a finding of fact--"there has been no change in the position of the other side by any omission or representation made by the tenants which led to believe or change their mode of action to their detriment." In support of this finding the learned District Judge has quoted the fact that after the present plaintiffs had pleaded in their written statement filed in the rent suit brought by the landlords that they were no longer in possession of the holding and that the mortgagees were in possession, the landlords obtained a decree for rent and in later years, namely, in 1919 they instituted a proceeding u/s 105 of the Bengal Tenancy Act against these plaintiffs and defendant No. 9 as tenants for enhancement of their rent. It has not been urged in regard to this finding of fact that it rests upon no material. The learned District Judge was correct in being precise in his findings on this issue of estoppel and the matter is not concluded. Mr. Hasan Imam, who took up the argument on the second day, has not committed himself to this proposition of estoppel. He has treated the plaintiffs'' written statement as a very serious admission of title, and no doubt it is. In ordinary circumstances it would be almost coercive, but then we must remember that eight years ago these plaintiffs were very young people and we must remember on the other hand, that the landlords never for one moment accepted the plea in the slightest measure in any transaction that passed between the parties. It was an admission that was ill-advised and untruthful, but it would be a harsh proceeding indeed if we were to take it now as for ever precluding the plaintiffs from asserting their title to their holdings.

Much has been said about the pious duty of plaintiffs Nos. 4, 5 and 6 and the convention that they at least would in ordinary circumstances be bound by their father''s act, so long as it was not contrary to good conduct. But speaking personally for myself I have doubts whether the application of the doctrine of responsibility of sons for their father''s debts can be applied to a small group within a complex joint family. The father was not only in possession of properties of which his sons were coparceners, but also there were others who were not his sons and for whom he was holding that property, in trust. But it is not necessary to come to any decision in the matter because even if Mahabir was able to bind his sons, that would only affect a part of the holding and the sale of a part of the holding, though invalid in the presence of the landlord who has not given his consent, is, it has been held in well-known cases, not an abandonment.

Lastly, I take notice of another point raised in the argument on behalf of the appellants. It was urged that the plaintiffs must sue first to set aside the sale to the mortgagee and if they do not make this a specific relief in their plaint, their suit will not stand, and if they do make it a relief, they will be barred by Article 12 of the Limitation Act. They have gone so far as to invoke the case of Malkarjun v. Narhari 25 B. 337 : 27 I.A. 216 : 5 C.W.N. 10 : 19 M.L.J. 368 : 2 Bom. L.R. 927 : 7 Sar. P.C.J. 739 . It is obvious that that case is inapplicable here. In Malkarjuri''s case 25 B. 337 : 27 I.A. 216 : 5 C.W.N. 10 : 19 M.L.J. 368 : 2 Bom. L.R. 927 : 7 Sar. P.C.J. 739 the defendant-mortgagee against whom a redemption suit was brought happened also to hold title as an auction purchaser in an execution. It was held that the plaintiffs could not succeed in their suit for redemption; that they must first, if they are to obtain possession of the property, remove the obstacle which was vested in the defendant as purchaser under the sale in execution of a money-decree. Here there is no defendant having a double title of this kind and it is difficult to see how it is necessary to clear away the sale in execution of the mortgage-decree before the plaintiffs can sue for the other reliefs. As a matter of fact the plaintiffs are suing for setting aside the mortgage-decree and that in itself is sufficient to remove the foundation from the title of any one claiming under execution of that decree.

In my opinion, this appeal should not succeed. I would dismiss it with costs to the plaintiffs-respondents.

Bucknill, J.

I agree.