Mt. Babbal Kumari Jayaswalin and Another vs Mulchand Marwari and Another

James, J.—In Balarampur in Barabhum, Adi Majhi possessed in 1911 a raiyati holding of 2.8 acres on an annual rent of Rs. 6-10-0. At some time (presumably between 1911 and 1921.) Adi Majhi sold to Badluram Jaswal and Kalikaram Jaswal an area of 61 acres out of this holding for the construction of a dwelling house. In 1921 the sons of Adi Majhi, who died before that date, executed a registered deed by which they formally abandoned any claim to this area which had been transferred by their father, making the stipulation that the transferees should pay annually Rs. 5-12-0 as the rent of the holding. In 1925 the transferees applied to the landlord for recognition as tenants.

The landlord''s estate was then being managed under the Encumbered Estates Act. The manager, remarking that the manner in which the petitioners had obtained these lands was illegal, refused to treat them as tenants unless they paid Rs. 200, and arrears of rent for the previous years. On payment being made the appellants were recognised. The purchasers of this land found themselves in 1928 defendants in a money suit which had been instituted by Mulchand Marwari. The plaintiff in that suit applied for attachment before judgment of the house which had been erected on the land which had formerly belonged to Adi Majhi. An objection was taken by the defendant, which was allowed by the Subordinate Judge, who held that the raiyati character of the land remained unchanged; and that therefore it could not be brought to sale by reason of the provisions of Section 47, Chota Nagpur Tenancy Act.

Within three months of this decision the plaintiffs instituted a. suit under Order 21, Rule 63 praying for a declaration that the property was saleable.

The plaint was first presented in the Munsif''s Court, but the value of the property exceeded the pecuniary jurisdiction of the Munsif, so that the plaint was ultimately returned for presentation in the Court of the Subordinate Judge. It was presented in the Court of the Subordinate Judge on 16th November 1929. The Subordinate Judge then proceeded to hear the suit, which was decreed in favour of the plaintiff. It was held that the status of the defendants was not that of raiyats as defined by the Chota Nagpur Tenancy Act and that the disputed property was liable to be sold in execution of a decree. The defendants appealed to this Court. While the suit was pending Babbal Kumari Jayaswalin had been substituted as a defendant in place of her deceased husband Badluram Jaswal.

The widow with the surviving defendant presented the memorandum of appeal in the High Court, but sometime after the memorandum of appeal was presented the father of the deceased defendant prayed that he might also be added as an appellant on the ground that the widow by re-marrying had forfeited her right to the property of her deceased husband.

Mr. Jayaswal on behalf of the widow suggests that it is unnecessary for us to enter into the question of whether the widow or her father-in-law may be entitled to the property, since both are before the Court and we have merely to determine whether the property is saleable or not, and not to determine the rights of the defendants inter se. This I think is the correct view and it is not necessary for us to determine whether the widow by re-marriage has or has not forfeited her right to the property inherited from her husband.

Mr. Jayaswal argues that this suit should have been treated as barred by limitation, because if it had been a suit instituted under Order 21, Rule 63 against a summary decision determining a claim in execution proceedings, it would be governed by the provisions of Article 11, Limitation Act. But the period of one year prescribed by Article 11 applies only to suits by a person against whom an order has been made on a claim preferred to or an objection made to the attachment of the property attached in execution of a decree. In the present case the attachment was made before judgment, and although the provisions of Rules 58 to 63 of Order 21 may be applied to claims or objections made in attachments before judgment, no period of limitation is prescribed by Rule 63 of Order 21, and the rule in Article 11 of the Schedule to the Limitation Act is expressly limited to claims or objections made to the attachment of property attached in execution of a decree.

No special provision is made for suits of this nature arising out of objections to attachment before judgment so that Article 120, Lim. Act, must be held to apply to such suits, as was held by the Madras High Court in 1921 Mad. 163 Arunachala Chetty v. Periasami Servai 1921 Mad 163. Thus even if we are to assume that the plaintiffs cannot claim the benefit of the provisions of Section 14, Lim. Act, the suit cannot be treated as barred by limitation.

Mr. Jayaswal next argues on behalf of the appellants that the decision of the Subordinate Judge is wrong on the merits, that the defendants should be treated as raiyats, and that the property should have been treated as protected from sale in execution by the provisions of Section 47, Chota Nagpur Tenancy Act. The land which Adi Majhi purported to transfer to the defendants was formerly raiyati land as appears from the record of rights (Ex. A). The sale was of a kind prohibited by Section 46, Chota Nagpur Tenancy Act; and it would not by itself confer any title on the purchaser, even if it was followed by the formal abandonment of a portion of the holding by the sons of the former raiyat on 19th September 1921.

At that stage, until the newcomers obtained recognition by the landlord, this portion of the holding was merely land which had been abandoned by the original raiyat from which the newcomers were liable to be ejected by the landlord; and the newcomers were not raiyats on the land. In 1925 the defendants applied to the landlord for recognition of their tenancy as occupiers of this portion of the original raiyati holding which had been sold to them by Adi Majhi. Mr. Jayaswal argues that when ultimately the landlord admitted these persons to tenancy he was merely giving effect to the sale made by Adi Majhi, and legalising their possession as raiyats of a portion of the holding which had formerly belonged to Adi Majhi.

But I do not consider that this view of the effect of the action of the landlord can be accepted; and I consider that the view which has been taken by the learned Subordinate Judge is correct.

The landlord did not merely give effect to the arrangement which had been made between the sons of Adi Majhi and the transferees, that the transferees should remain on the land on paying an annual rent of Rs. 5-12-0. He required them to pay an annual rent of Rs. 5-12-0; he required them also to pay a premium of Rs. 200, thereby making it clear that this was a new tenancy. On the question of whether the newcomers became raiyats. or merely tenants with building rights, we have to consider the purpose for which the land was leased out to the newcomers by the landlord; and the question of what was the purpose for which it had been leased to Adi Majhi becomes irrelevant. It cannot be said that the land was leased to these defendants for the purpose of cultivation.

It was taken for the purpose of erecting a dwelling house and the learned Subordinate Judge has rightly held that the tenancy is not one of a kind which is governed by the provisions of the Chota Nagpur Tenancy Act; but that it is governed by the Transfer of Property Act. The learned Subordinate Judge has rightly found that the property is liable to be brought to sale in execution of a decree; and I would affirm his decision and dismiss the appeal with costs.

Fazl Ali, J.

I agree.