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LECTURE
XII.

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Again, where a tenure stood in the name of one of two original co-sharers, but the other co-sharer had bought all his right at a sale in execution of an ordinary decree, and thus was the owner of the whole tenure, but whose name was not registered, it was held that the tenure might be sold in a suit for eleven years' arrears against the registered tenant who admitted the claim for arrears. And similarly a sale under a decree in a suit for arrears due from all the sharers in a talook, but to which only the registered sharers seem to have been parties, although the other sharers were aware of the pendency of the suit, was held to pass the tenure. In another case the plaintiffs had obtained a decree for possession of a talook, but while the decree was under appeal the zemindar sued the registered tenant for arrears up to a period subsequent to such decree : a sezawul was put in possession of the talook, and a sale decreed in the rent suit; and the plaintiff did not get himself registered, or tender to stay the sale, or apply for the removal of the sezawul: under these circumstances it was held that the plaintiff could not set aside the sale; and that the whole tenure passed, there being the necessary provision to that effect in the lease. But where a transfer of a tenure has been recognised the zemindar cannot sell for arrears in a suit against the registered holder. On

1 Doorga Persad Bose v. Sreekisto Moonshee, 2 Wyman's R., 212; W. R. (1864), Act X, 48, s. c.

2 Alimoodeen v. Sabir Khan, 8 W. R., 60.
'Forbes v. Protap Singh Doogur, 7 W. R., 409.

• Samiraddi Khalifa v. Harischandra, 3 B. L. R., A. C., 49. Pran Bandhu Sircar v. Sarbasundari Debi, ib., 52 (note). Meah Jan Munshi v. Kurrunamayi Debi, 8 B. L. R., 1. Ram Baksh Chatlangi v. Hridoy Mani Debi, ib., 10 (note). Mojon Mollo v. Dula Gazi Kulan, 12 B. L. B., 492 (note).

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the other hand, it has been held that an unregistered purchaser from whom payment in order to stop the sale had been accepted, but without notice to the zemindar of his being entitled as purchaser, cannot avoid a sale made in spite of such payment.'

In one case a mortgagee obtained a foreclosure decree on the 18th December 1854 against the heirs of the registered holder of a mokurreree istemrari tenure, and was put into symbolical possession by the Court, but the decree was appealed against, and, while the appeal was pending, the zemindar sued the said heirs for arrears of rent due before the foreclosure decree, and sold under an ex parte decree, and appointed sezawuls. The mortgagee had tendered the rent for December, which was refused, and he was told that no rent would be received until the sezawuls were dismissed. The sale took place in April 1855, and in May 1855 the mortgagee applied to have his name registered, which application was refused. The zemindar had full notice of the mortgagee's title and proceedings. Under these circumstances the sale was set aside; apparently on the ground that the auction-purchaser could not, under the law then in force, avoid the mortgagee's title. The Privy Council intimated that it was doubtful whether the tender of arrears was necessary. In this case the sunnuds did not contain a special power of selling so as to come within Regulation VIII of 1819, section 11.

In another case, a talook stood in the names of A and B in 1270, and was attached and sold in execution of an

Mrityunjaya Sirkar v. Gopal Chandra Sirkar, 2 B. L. R., A. C., 131; 10 W. R., 466, s. c.

Forbes o. Baboo Luchmeeput Singh, 10 B. L. R., 139; 14 Moore's I. A., 330, s. c.

LECTURE
XII.

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XII.

LECTURE ordinary decree against A and B, and purchased by C and D in equal shares: and in 1274 D's share was sold in execution of an ordinary decree to E, who thus acquired half of A and B's right, title and interest, C having the other half: but no change of names was made in the zemindar's books, the zemindar having however received rent from C and D, who were described in the receipt given to them as auction-purchasers. After E's purchase a rent suit was instituted against A and B, and an ex parte decree was obtained, and the talook sold, and bought by F, under a certificate that F had purchased A and B's right, title and interest, and F was put into possession. C and E then sued D and F to have it declared that the plaintiffs were entitled to the talook, and for possession, on the ground that the rent suit was fraudulent. It was held that only the right, title and interest of the judgmentdebtors A and B could be sold, and that consequently nothing passed.'

2

In some cases, it appears to be laid down that at a sale for arrears against the former tenant the tenure passes; while in others it is held that only the former tenant's right, title and interest passes. In the latest case upon the subject, the plaintiffs purchased a transferable tenure at a sale in execution of an ordinary decree, but before confirmation of the sale the zemindar sold the tenure in a suit for arrears against the registered tenants, and the plaintiffs did not deposit to stay the sale. It was held that the plaintiffs could not afterwards set aside the sale. The decision is put

1 Dowlut Gazi Chowdry v. Moonshee Munwar, 12 B. L. R., 485 (note); see p. 492.

2 Compare Rajkishore Dutt v. Bulbhuddur Misser, S. D. A. (1859), 389, and Wahed Ali v. Sadiq Ali, 12 B. L. R., 487 (note).

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by Chief Justice Couch upon the ground that "the holding or interest which has been created by the lease" passes under such a sale; and he argues that if this is not intended when it is said the "tenure" is to be sold, there was no need for the provision, because the right, title and interest of a judgment-debtor could be sold under an ordinary decree. But with great submission, I would venture to point out that the provisions for the sale of an under-tenure for arrears of rent prescribe a different mode of sale from the ordinary process of sale in execution and expressly give a different effect to such sale, since they entitle the purchaser to avoid incumbrances: and if the mere provision that the "tenure" should be sold sufficed to pass the entire interest, in whomsoever vested, as argued by the Chief Justice, there would seem to have been no necessity to provide that incumbrances might be avoided, since to use the words of the Chief Justice the "tenure" means "not the right or interest of any person in the land, but the holding which has been created by the lease." In the case under notice, however, the plaintiff would not have been entitled to succeed as being an unregistered holder, if the cases before referred to are correctly decided: so that it would seem that what fell from the Chief Justice as to the meaning of the term "tenure" was not strictly necessary for the decision.1

A sale duly made under the provisions of the Rent Acts entitles the purchaser to avoid incumbrances upon the tenure as provided in section 66 of Act VIII of 1869 (B.C.). Still the tenure is not expressed to be hypothecated for the rent, but only the produce. If the defaulting tenant himself

'Shamchand Kundu v. Brojonath Pal, 12 B. L. R., 484.
Tirthanund Thakoor v. Paresmon Jha, 13 W. R., 449.

LECTURE

XII.

LECTURE

XII.

Assignments of revenue and

thereof.

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is the purchaser he cannot take advantage of section 66 to avoid his own acts. Before Act VIII of 1865 (B.C.), the lease must have expressly reserved the right of sale for arrears to entitle the purchaser to avoid incumbrances. The sale itself does not cancel the incumbrances, but only gives the purchaser a power to do so; of which he may elect to avail himself, or which he may lose by not exercising.

The considerations of the rights arising out of assignments the resumption of revenue will now complete our subject. I have already dealt with this branch of my subject and have brought down the law upon the point to the time of the Permanent Settlement. I shall therefore proceed to trace the subsequent legislation, which commences with Regulation XIX of 1793; a Regulation re-enacting and amending the Regulations of 1st December 1790, which embodied the law on the subject at the time of the Decennial Settlement. Regulation XIX of 1793 recites the right of the ruling power of the country to a certain proportion of the produce of every beegah of land, and that a grant by a zemindar of land free of revenue is void. But that notwithstanding many such grants had been made, both by zemindars and officers of Government, on the pretence of applying the

Meheroonissa Bibee v. Hur Churn Bose, 10 W. R., 220.

2 Mohima Chunder Dey v. Gooroo Doss Sein, 7 W. R., 285. Shahabooddeen v. Futteh Ali, B. L. R., Supp. Vol., 646; 7 W. R., 260, s. c. Brindabun Chunder Chowdhry v. Brindabun Chunder Sircar Chowdhry, 8 W. R., 507; L. R., In. App., 178, s. c. Satkouree Mitter v. Useemuddeen Sirdar, S. D. A. (1851), 626. Meheroonissa Bibee v. Hur Churn Bose, 10 W. R., 220. Meer Jasimuddin v. Sheikh Mansur Ali, 6 B. L. R., App., 149; 15 W. R., 11, s. c. Forbes v. Baboo Lutchmeeput Singh, 10 B. L. R., 139.

* Gobind Chunder Bose, v. Alimooddeen, 11 W. R., 160. Modhoo Soodun Koondoo v. Ramdhun Gangolee, 12 W. R., 383.

See Lecture VIII.

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