Jhum Lal and Another vs Sham Narayan Singh and Others

Rowland, J.—The principal defendants held a decree for sale of a property and the suit out of which this appeal arises was brought to declare that that property in the hands of the plaintiffs could not be sold in execution. The history of the case is set forth in the judgment of the 1st Court, but it will be best to repeat the salient features as there have been successive dealings with fractional shares and confusion requires to be avoided.

There was a two anna share in village Karmoopur, Tauzi No. 3605/19, of which the proprietor was Mt. Uma Kuer. She executed a mortgage deed hypothecating the entire 2 annas share to one Dasrath on 15th January 1899. Thereafter she sold to the predecessor of the defendants first party one anna share on 9th July 1903. I shall refer to this as the first one anna share. There remained in Uma Kuer''s hand the second one anna share. Dasrath sued on his mortgage in 1907 and obtained a mortgage decree on 16th September 1910. In the meantime the properties in the hands of Uma fell into arrears of road-cess and two sales of fractions in it were held on the 15th December 1908 and 5th April 1910 respectively.

By these sales taken together 7 gandas 2 kowris out of the second one anna share were brought in the name of Abilakh, who was actually a farzidar of one Jadunandan. After the decree of Dasrath, Uma Kuer on the 31st May 1912 sold the second one anna share to Udai Narain, son of Paltan, ignoring the sales in execution certificates for arrears of cess. In 1917 Dasrath put up the entire 2 annas share to sale in execution of his mortgage decree. The property was actually sold and the sale was set aside by the deposit of the entire decretal amount which was made by the predecessor of the defendants first party. These defendants first party brought a suit in 1918 to recover the money paid in 1917 to redeem the prior mortgage of Dasrath.

In the meantime there had been litigation between Udai Narain and Abilakh and his principal Judunandan with respect to the 7� gandas share which had been sold for arrears of cess. The defendants Jadunandan and Abilakh were successful and were given a decree for costs in execution of which the second one anna share of Udai was put up for sale and was purchased by Abilakh (on behalf of Jadunandan) on 18th May 1920. By this time the suit of defendants first party instituted in 1918 had matured into an ex parte decree passed on 16th January 1919. The plaintiff purchased one anna share on 18th April 1924 from the son of Jadunandan in whose favour a deed of relinquishment had been executed OK 18th February 1924 by Abilakh. The defendants first party in execution of their ex parte decree attached and put up for sale the one anna share of Udai in the hands of plaintiffs. The plaintiffs filed a claim case under Order 21, Rule 58 which was allowed by the executing Court releasing the entire one anna share. Defendants first party moved this Court in revision.

The properties brought by Jadunandan on sale for arrears of road-cess were referred to as 7 gandas and the remainder of the second one anna share was referred to as 13 gandas. It was held that the former property; namely, 7 gandas, was not liable to be sold in execution of the decree, but that the second property, namely, 13 gandas, could be sold in execution of the decree. In the present suit exemption from sale is claimed in respect of the further 13 gandas.

It has been pointed out that the 2 properties are not 7 gandas and 13 gandas, but 7� gandas and 13� gandas. Therefore the plaintiffs'' property is exempted from sale to the extent of 7� gandas and the plaintiffs are entitled to a decree for � ganda.

This finding of the Munsif has been affirmed by the District Judge. It is contended in second appeal that the defendants first party must be held on their pleadings to be persons holding a charge within the meaning of Section 100, T.P. Act, and that the plaintiffs are bona fide purchasers of the property for value without notice to the charge. The defendants in fact in their written statement have not pleaded notice. They content themselves with saying that the plaintiffs are bound by the decree against their predecessors. We have been referred to Section 100, T.P. Act, as amended in 1929 and to the decision of Akshoy Kumar v. Corporation of Calcutta [1915] 42 Cal 625 for the contention that a charge cannot be enforced against any property in the hands of the person to whom such property has been transferred for consideration and without notice of the charge. In my opinion the decision cited is not applicable to the facts of this case.

The particular charge which was being considered in that case was a charge created by statute making the holdings within the area under the Calcutta Corporation liable to a first charge for arrears of consolidated rate. Their Lordships pointed out "here only a charge has been created by express words of the statute, and not a mortgage." It is said: "The owner continued to be the full owner of the property" and again "The owner was not in the position of a mortgagor".

In the present instance the rights of the defendants first party are rights of subrogation specified in Section 92, T.P. Act. The defendants first party as purchasers of a part of the equity of redemption come within the description of persons referred to in Section 91, and such persons on redeeming property subject to the mortgage are given by Section 92, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee.

The owners of the property were in the position of mortgagors throughout and the facts of the present case are distinguishable from those of the Calcutta case reported in Akshoy Kumar v. Corporation of Calcutta [1915] 42 Cal 625. We should point out, further, that Section 100, T.P. Act, in its present form, was enacted in 1929 after the transactions with which we have to deal.; and the view taken in Akshoy Kumar v. Corporation of Calcutta [1915] 42 Cal 625 was unreservedly accepted by this High Court in Murat Singh v. Pheku Singh (2). In the present case there is the further fact that the defendants first party had actually got their decree for the sale of the property before the transfer to the plaintiffs which decree the plaintiffs have not sought to set aside.

I have no doubt that the decision of the Courts below was correct and must be affirmed. The appeal is dismissed with costs. Agarwala J.--I agree.