Ramdeo Singh vs Komal Singh and others

Courtney-Terrell, C.J.—This is an appeal from a decision of the District Judge of Gaya, confirming the judgment, of the Subordinate Judge in a suit by a minor for a declaration.

It appears that the defendant was the landlord of certain land in which there were two khatas, No. 93 which was held by tenants on naqdi rent and No. 94 which was held on bhaoli rent. The plaintiff was the rehandar of a certain fraction of the area of the khata No. 94. On previous occasions the landlord had to sue the tenants for rent and he made it a habit of joining the plaintiff, who is the rehandar as a party to the suit (for reasons best known to himself) but probably in order that the decree for the rent might be pronounced in the presence of the rehandar and bind him to the extent of res judicata or for any other suitable reason. On this particular occasion the landlord followed the same course and joined the rehandar as a a party to the suit. We have examined the plaint in the rent suit and have seen that the plaintiff is joined merely in that capacity. The result of the suit was that a decree was granted which in form was against the "defendants" to the suit for the rent claimed. No precise differentiation is made between the positions of the respective defendants to that suit: the decree was merely passed against the "defendants." In execution of that decree the landlord ignored the actual tenants and proceeded against the rehandar only, taking the attitude that this was a joint and several decree against the whole of the defendants and he was entitled to execute it. He accordingly attached and sold in execution part of the ancestral property of the rehandar which was quite separate from the land in respect of which the rent in the suit was claimed. He succeeded in selling the land and bought it himself at the auction sale. The plaintiff did not take an objection in the execution proceedings but waited until later and then brought a suit for the declaration which he now asks for. One of the reasons for the delay was apparently the fact that the plaintiff was a minor and part of his case in the suit was that the decree had been obtained by fraud. As it turns out these allegations of fraud are not really material to the case. The real point in the case, and a point that was put in issue formally in the trial Court, was whether the property of the plaintiff was liable for the entire dues of the defendants under the decree dated 27th July 1925 as alleged. The learned Subordinate Judge and also the District Judge held that the decree was a joint and several decree against all the defendants in the suit and did not differentiate between the defendants in the matter of the execution of the decree against the respective defendants.

It is true that as far as the construction of the decree is concerned, the trial Court and the lower appellate Court are right that it is a joint and several decree against all the defendants. The only question that arises is as to what was the proper procedure to execute that decree in the circumstances against the rehandar who is the plaintiff and the appellant before us. The liability of a tenant is clear if the relationship of landlord and tenant exists and if the plaintiff succeeds in getting a decree for rent he can pursue, his remedy against the holding and furthermore he can proceed against the tenant personally if he has any property over and above his interest in the holding; but as against a person who, as between him and the landlord, is not a tenant at all, he has no personal remedy except in so far as that person''s interest in the tenancy is concerned which of course may be destroyed by the fact of the sale of the holding and the landlord cannot proceed against him and attach his personal and separate property. A very similar circumstance arose in two cases which have been cited to us, namely, in Sukhdeo Prasad Narayan Singh v. Madhusudan-Prasad Narayan Singh, 1931 Pat 177 = 132 IC 871 = 10 Pat 305, and in Bhudaram Marwari v. Udai Narayan, 1932 Pat 12 = 135 IC 93. The two cases were similar. In the first case a certain manager of a Mitakshara joint family had taken a loan for the purposes of the joint family. A decree had been obtained and it was sought to execute it against the sons of the borrower, who had been the karta of the family. It was held that the sons were not liable to satisfy the decree save to the extent that they had come into possession of the property from the karta of the family (the borrower), notwithstanding that the borrowing was for joint family purposes. In other words in the case which 1 have just cited and in the case before us there is no doubt that the defendant in the suit in question was jointly and severally liable with the other defendants for the amount claimed but with regard to the recovery of the amount in question that was limited to a certain class of property and therefore his liability did not extend beyond this.

Accordingly I would hold that the sale which has taken place under the decree in this case in execution was Void as against the plaintiff-appellant. The decision of the District Judge must therefore be reversed with costs. If however the sale has not taken place, there will be an injunction against the defendant from proceeding with the sale; but if on the other hand the sale has taken place, it will be declared that the sale is a nullity. The defendants must pay the costs of the appeal.

Varma, J.

I agree.