Inder Chand Bothra and Another vs Surendra Narain Singh

Das, J.—All the material facts giving rise to this appeal are stated with precision in the judgment of the learned Subordinate Judge; and, when these facts are properly understood, the point which we have to decide in this appeal arises free from all complications. The point is this: whether the appellant, who in 1896 obtained a decree for rent against one Chatrapat Singh in respect of a putni mahal known as lot Sahebgunj situate within the ambit of the appellants'' zamindari known as Pergana Havelie, is entitled to execute the decree against the respondent who in September, 1902, purchased the right, title and interest of Chatrapat Singh in the putni mahal, notwithstanding the fact that prior to the institution of the proceedings, which have given rise to this appeal, the putni mahal passed from the hands of the respondent into the hands of one Forbes.

The learned Subordinate Judge has found against the appellants on the main question that was argued before him. In my opinion, the decision of the learned Subordinate Judge is right and ought to be affirmed.

Dhanpat Singh was the zemindar of Pergana Havelie. As I have said before, Chatrapat Singh was the putnidar of lot Sahebgunj situate within Pergana Havelie. Mr. Forbes held a darputni interest under Chatrapat Singh. Dhanpat Singh died on the 21st July, 1896, and the appellants are the trustees of his estate under a deed of trust executed by Dhanpat prior to his death.

On the 27th June, 1893 Dhanpat Singh sold Pergana Haveile to Musammat Bhagwanbati. On the 21st September, 1893 he instituted a suit against Chatrapat for recovery of rent that accrued due to him prior to the 27th June, 1893. On the 10th July, 1896, the Calcutta High Court passed a decree in favour of Dhanpat as against Chatrapat in 1900. Chatrapat failed to pay the putni rent to the new landlord, Musammat Bhagwanbati the lady took proceedings under the putni regulation, whereupon Mr. Forbes, for the protection of his darputni interest, deposited the rent in full and took possession of the putni, mahal u/s 13(4) of the putni regulation.

In September, 1902, the respondent purchased the putni mahal in execution of a money-decree against Chatrapat and became liable by such purchase to make good to Mr. Forbes the money deposited by him in the proceedings instituted by Musammat Bhagwanbati against, Chatrapat. The position in September 1902 was therefore this: there was a decree for rent against Chatrapat Singh; but the putni mahal, in respect of which the rent decree had been obtained, was then the property of the respondent, though Mr. Forbes, the darputnidar, was actually in possession of the putni mahal u/s 13(4) of the putni regulation.

It is obvious that both Mr. Forbes and the respondent were interested in resisting the execution proceedings which had been started by the appellants against Chatrapat Singh in 1897, and they resisted the execution proceedings on the ground that the decree that had been obtained by Dhanpat against Chatrapat was a money-decree and not a rent decree. It will be necessary now to trace the history of the execution proceedings; but, before doing so, I should mention that Mr. Forbes instituted a suit as against the respondent for recovery of the money which had been deposited by him in the proceedings taken by Musammat Bhagwanbati, under the regulation, against Chatrapat, and that on the 18th May, 1916, he got a decree as against the respondent for Rs. 57,166, the decree providing that, if the respondent failed to pay the decretal amount to Mr. Forbes, the putni itself should be sold.

The Respondent failed to satisfy Mr. Forbes'' decree, and, as a result of his failure, the putni was put up for sale on the 3rd July, 1917 and was purchased by Mr. Forbes for Rs. 2,000. It is necessary to remember that the respondent was at no time in possession of the putni, and that the title to the putni which had accrued to the respondent in September 1902 by virtue of his purchase in execution of a money-decree against Chatrapat, passed away from him on the 3rd July, 1917.

I now come to the execution proceedings; and it will appear that the question, whether the decree that had been obtained by Dhanpat against Chatrapat was a rent decree or a money-decree, was early raised and was long debated. The point arose on the admitted fact that Dhanpat brought his suit for arrears of rent against Chatrapat after he had parted with all his interest in the zamindari in favour of Musammat Bhagwanbati; and, as will presently be seen, it was contended, first, on behalf of Chatrapat, then on behalf of respondent, and lastly on behalf of Forbes, that the right to proceed for sale u/s 65, Bengal Tenancy Act, was dependent on the existence of the relationship of landlord and tenant at the time when the remedy provided by law was sought to be enforced and that as the appellants were not the landlord at the time they started the execution proceedings, they were not entitled to execute the decree as a rent decree.

In 1897, the appellants started execution proceedings against Chatrapat, and the objection put forward on behalf of Chatrapat to the execution of the decree as a rent decree was rejected by the Courts in India. The execution proceedings, however, for some reason which has not been made clear to us, failed to produce any result, and in 1904, the appellants presented another application for execution. The respondent, who was now the Putnidar, objected that the decree was a money-decree and not a rent decree, and that the putni was not liable to be sold in execution of that decree.

A similar objection was put forward on behalf of Mr. Forbes, who also insisted that having deposited the amount of the arrears u/s 13 of the Regulation in the proceeding commenced by Musammat Bhagwanbati against Chatrapat, he-had a first charge on the putni for the sum so deposited by him. The objections were disallowed by the Courts in India. In 1905 the respondent instituted a suit for a declaration that Dhanpat''s decree against Chatrapat was a money-decree and that the putni could not be sold in execution of that decree.

The Courts in India decided, against the contention of the respondent, the date of the decision of the High Court being the 8th April, 1908 The respondent then applied for, and obtained leave to appeal to His Majesty in Council, but that appeal subsequently failed for non-prosecution. Mr. Forbes also instituted a similar suit and, though the Courts in India decided against him, he carried his appeal to the Judicial Committee where his contention prevailed.

By its decision, which was pronounced on the 4th March, 1914, and which is reported in AIR 1914 111 (Privy Council) the Judicial Committee held that the right to bring the tenure to sale u/s 65, Bengal Tenancy Act, exists only so long as the relationship of landlord and tenant exists, and appertains exclusively to the landlord and that a person, to whom rents are due and who obtains a decree for them after he has parted with the property on which the tenancy is situate, has no such right.

The position then is this : as between the appellants and Mr. Forbes, the decree must be regarded as a money-decree and not as a rent decree, but as between the appellants and the respondent the decree must be regarded as a rent decree.

It is not necessary to follow the fortunes of the different execution proceedings that were from time to time commenced by the appellants. I come to the application of the 22nd January, 1915, when the appellants applied to have the decree treated as a money decree and the respondent added as a judgment-debtor. It will be remembered that the position then was that the respondent was the putnidar and Mr. Forbes was the darputnidar in actual possession of the putni mahal,

On the 19th March, 1915, the appellants presented another application to the Execution Court. They stated in their petition that the Judicial Committee has held that the decree obtained by them against Chatrapat was a money-decree. They submitted that it was not possible to recover the amount of the decree without proceeding against the properties other than that in respect of which the decree had been obtained, and they applied for attachment and sale of certain properties belonging to Chatrapat.

This application was presented on the 19th March, 1915; but it will be remembered that they had already on the 22nd January, 1915, applied to have the respondent added as a judgment-debtor in the execution proceedings. On the 27th March, 1915, the respondent objected to being added as a judgment debtor. He contended that, as he was neither the judgment-debtor nor the legal representative of Chatrapat, the decree-holders could not proceed against the putni mahal in his hands.

Before this application was heard and disposed of the putni mahal passed into the hands of Mr. Forbes. The decree-holders abandoned their application of the 19th March, 1915, and on the 23rd November, 1918, they presented an application for attachment and sale of certain properties belonging to the respondent. It is this application which has given rise to this appeal.

Mr. Manuk, on behalf of the decree-holders appellants, contends that the decree obtained by Dhanpat Singh against Chatrapat Singh must be regarded as a rent decree so far as the respondent is concerned and that it was open to him to proceed against the putni mahal in the hands of the respondent. I have no doubt whatever that, had the appellants proceeded against the respondent at any time between September, 1902 and July, 1917, during which period the title to the putni mahal was in the respondent, there could be no answer to the claim of the decree-holders.

It having been held in proceedings between the appellants and the respondent that the decree obtained by Dhanpat was a rent decree, the appellants had a charge on the tenure so long as the tenure was in the hands of the respondent, and it was plainly impossible for the respondent to resist the claim of the appellants. But the tenure has now passed from the hands of the respondent to the hands of Mr. Forbes. Mr. Manuk contends that if the respondent has allowed the tenure to go into the bands of a third party, he must be personally liable for the decree. In my opinion, there is neither principle nor authority for this contention. It was, in my opinion, open to the decree-holders to proceed against the tenure in the hands of Mr. Forbes.

It was argued by Mr. Manuk that he could not take this course having regard to the decision of the Judicial Committee in the suit between the appellants and Mr. Forbes that the decree was a money decree. That may be so; but Mr. Forbes as the purchaser of the putni mahal from the respondent was in an entirely different position. As the representative-in-interest of the respondent, Mr. Forbes would be bound by the decision in the suit as between the appellants and the respondent.

By that decision the decree was held to be a rent decree and as involuntary alienations stand on the same footing as voluntary alienations, the appellants could, in my opinion, follow the putni mahal in the hands of whomsoever it might be under a title derived from the respondent,

Mr. Manuk next contends that the respondent must be regarded as the representative-in-interest of Chatrapat Singh and is therefore personally liable to satisfy the decree obtained against Chatrapat Singh. In ray opinion, there is no warrant for the proposition. The decree was not obtained against the respondent. It may be that, as the result of the litigation between the appellants and the respondent, it must now be held that so long as the putni mahal was in the hands of the respondent there was a charge upon the putni mahal for the decretal claim of the appellants against Chatrapat Singh,

But it has been held that a transferee of a tenure is not personally liable for rent which accrued due prior to the transfer. See Jogemaya Dassi v. Girindra Nath Mukherjee (1900) 4 C.W.N. 590. The recent decision of the Judicial Committee in the case of Nanku Prasad Singh v. Kamla Prasad Singh P.C. Case decided on 19-1-22 (unreported) pronounced on the 19th January supports this contention. That was a case in which it was sought to make the purchasers of mortgaged properties personally liable for the mortgage-debt.

The Judicial Committee, in a very short judgment, said as follows:-

Their Lordships have considered this case, and they think it is clear that no personal liability was incurred by the purchasers of the equity of redemption, who, their Lordships understand, are defendants Nos. 2 to 11, of whom only five are respondents here. ''Their Lordships therefore think that the decree of the High Court was right and that the point made by the appellant fails.

The position occupied by the respondent is in no way different from the position which a purchaser of the equity of redemption occupies. The utmost that can be said in favour of the appellants is that they had a charge upon the tenure in the hands of the respondent. The respondent was the purchaser of the tenure which was already subject to a charge in favour of the appellants. He is in the same position as the purchaser of an equity of redemption, and, in my opinion, no personal liability was incurred by him by such purchaser. In my opinion the decision of the learned Subordinate Judge is right and must be affirmed. I would dismiss this appeal with costs.

Ross, J.

I agree.