Supan Sahu vs Tulsi Singh

Macpherson, J.—This appeal is preferred by Supan Sahu, the plaintiff in a suit instituted in the Court of the Subordinate Judge of Palamau, substantially for a declaration that the decree obtained by defendant 1 in Suit No. 2 of 1926 is inoperative and the sale on 21st March 1928, in execution thereof of property appertaining to the Dabra Estate of the plaintiff is void as such property was nob saleable by reason of the provisions of Section 12-A, Chota Nagpur Encumbered Estates Act, 1876 (hereinafter called the Act). It is extremely difficult to infer from the plaint itself which is in the worst Daltonganj form and regardless of all rules of pleading what the real object of the litigation was. But it is admitted by the learned advocate for the appellant that the gist of the claim is that the sale of plaintiff''s 10 annas share in Juro and 11 1/2 pies out of 16 annas in Ramanand Dabra is void u/s 12-A of the Act.

The Subordinate Judge dismissed the suit which was decided on documentary evidence only. He held that no disqualification attached to the plaintiff u/s 12-A of the Act, and that the suit was barred under the principles of res judicata.

In appeal it is urged that at least the second finding is wrong and it is also contended, though in the end somewhat feebly, that the decision on the first point also is erroneous. It is clear that if the first finding is correct, the suit can have no basis.

The estate of Jhumak Sahu, father of the plaintiff-appellant, was taken under the Act by notification dated 9th May 1906, which definitely set out that the management was vested in Babu Surya Kumar Som, First Manager of the Encumbered Estates, Palamau, of the undermentioned immovable property of Jhumak Sahu of Dabra which property comprised Juro 16 annas, Ramanand Dabra 13 annas and shares in four other villages. The estate was designated the Dabra Encumbered Estate.

On the death of Jhumak Sahu in or before 1910 the Manager of the Encumbered Estates on behalf of appellant and Hira and Jawahar, sons of the deceased obtained mutation of names in respect of Ramanand Dabra not only for the share of the deceased but also for a small share previously in the names of his sons. A further notification in 1913 under the provisions of Section 20 vested the management of the Dabra Encumbered Estate in the Manager of the Encumbered Estates who had succeeded Babu S.K. Som, the names of the proprietors being given as Supan Sahu and Hira Sahu, sons of Jhumak Sahu, deceased proprietor apparently after the death of Jawahar.

On 2nd September 1918, was published a notification releasing the estate from management which sets out that the Dabra Estate, the property of the late Jhumak Sahu of which Babu Surya Kumar Som was first appointed manager and subsequently Mr. P.C. Mazumdar, had been released from management under the Act and restored to the possession of the present proprietors Supan Sahu and Hira Sahu and proceeds:

The provisions of the Act, except Section 12-A, have ceased to apply to the said property from the afternoon of 6th August 1918.

Subsequent to the release there was, it is stated at the Bar a partition among the Sahus whereby the share of Supan Sahu came to consist of the property which is now in contest.

After the release Supan Sahu borrowed money from defendant 1 who eventually in 1928 in Suit No. 2 of 1926 secured a decree against him for nearly Rs. 8,000. In execution of the decree the property mentioned was sold and was purchased by the decree-holder. Thus the present suit is substantially for a declaration that in view of Section 12-A(1)(a) and (3) no such sale could be held by the civil Court in execution of a decree for money. It is conceded that in the suit mentioned several of the points now taken were negatived and in particular that it was expressly held that the plaintiff could legally advance money to defendant 1 without the permission of the Commissioner.

Now Mr. Raghosaran points out that in the notification releasing the estate the provisions of Section 12-A are retained and he relies on Sub-Sections (1) and (3) which run:

(1) When the possession and enjoyment of property is restored under the circumstances mentioned in Clause 1 or Clause 3, Section 12, to the person who was the holder of such property when the application u/s 2 was made, such person shall not be competent, without the previous sanction of the Commissioner.

(a) to alienate such property, or any part thereof, in any way; or

(b) to create any charge thereon extending beyond his lifetime;

(3) every alienation and charge made or attempted in contravention of Sub-section (1) shall be void.

Now the retention of Section 12-A, which continues disabilities after restoration of the property to the owner, will not show that Sub-Sections (1) and (3) are applicable to the persons to whom the estate is released. That enactment falls into two parts. Sub-Sections (1) to (5) apply to the owner who was also the person who was the holder when the application u/s 2 to take the property under management was made, whereas Sub-section (6) applies to all owners to whom the property is restored, whether they fall under Sub-Sections (1) to (5) or not, and so the enactment is retained in respect of all owners to whom an encumbered estate is released.

It has indeed been held in Khitnarain Sahi and Others Vs. Surju Seth and Others, that a sale in execution of a money decree is void u/s 12-A when the property sold is that of a person covered by Section 12-A (1). But it is not so when the proprietor falls within Section 12-A, but not within Section 12-A (1) to (5). Accordingly it is manifest and the learned advocate is constrained to admit that he cannot succeed unless he shows that the appellant falls u/s 12-A(1) as being "the person who was the holder of the property when the application u/s 2 was made."

But the endeavour to establish that the appellant Supan Sahu was the "holder" when the estate was brought under management is attended with overwhelming difficulty in view of the notification of 1906. Little can be pointed to except two documents, by the first of which Supan Sahu and Hira Sahu, sons of Jhumak Sahu, purchased 4 pies of Ramanand Dabra on 28th January 1904, and Jawahar Sahu, another son, purchased 2 pies on 30th January 1904, and in respect of these acquisitions it is said that they were included in the share of Ramanand Dabra which was taken under management in the name of Jhumak Sahu in 1906. But this would only go to show that the purchases were really benami in the names of Jhumak''s sons and for the benefit of the father.

Again the fact that the names of the sons were substituted on the death of the father would go to show that not they but he was the holder. The inference from the mutation proceedings in 1911 is the same. Manifestly the appellant has entirely failed to show that he was the holder in 1906.

It is faintly submitted that Section 2 is quite sufficient to include the heirs. But a perusal of the provision shows that the contrary is the case.

As the appellant does not fall within Section 124-A (1) it was competent to him after the release of the Dabra Estate to borrow not only money but even on mortgage without the sanction of the Commissioner, and there was nothing to prevent the decree-holder from suing on his bond and from selling the property of the appellant in execution of his decree. Admittedly Suit No. 2 of 1926 did not come within Sub-section (6).

This appeal is entirely without merits and must be dismissed with costs without calling upon the respondent.

Fazl Ali, J.

I agree.