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Dwarka Nath Pal v. Tarini Sankar Roy

Calcutta High Court

Jan 23, 1907

Judgment

Subsequent
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Structured Summary of the Opinion

Factual and Procedural Background

The suit underlying this appeal was brought by the Plaintiffs-Respondents seeking a declaration of title and partition of an 8 annas share in a holding which they claimed to have purchased. The holding originally belonged to Dwarka Nath Pal and his brother. In execution of a money decree obtained by Dwarka Nath Saha against Dwarka Nath Pal the whole holding was put up to auction and purchased by the decree-holder Dwarka Nath Saha on 9 November 1894. During the execution proceedings the daughters of one of the brothers claimed an 8 annas share; their claim was disallowed and they then brought a regular suit against the purchaser (Dwarka Nath Saha) asserting that only the 8 annas share of Dwarka Nath Pal had passed by the sale. Those claimants died during the suit and their mother was substituted as heir. The suit was decided on 8 July 1896 in favour of the Plaintiffs (who were successors to the purchaser), declaring that only the 8 annas share of Dwarka Nath Pal passed to Dwarka Nath Saha. Delivery of possession to Dwarka Nath Saha occurred on 31 December 1898, and in 1900 he had his name registered as a tenant for the half share in the landlord's sherista. On 29 Magh (1902) Dwarka Nath Saha sold the 8 annas to the Plaintiffs.

At first instance the Munsif held that the jote (plot) was an occupancy jote not transferable by custom and that, because the sale had been made without the landlord's consent, no right passed to the purchaser; the Plaintiffs' suit was dismissed. The lower Appellate Court set aside that judgment, holding that the 8 annas share did pass to the purchaser under the sale, that the landlord recognised and consented to the transfer, and that the purchaser and later the Plaintiffs had been in possession and paying rents; the Appellate Court therefore granted the reliefs claimed. The Defendant (Dwarka Nath Pal) appealed to this Court.

Legal Issues Presented

Whether a sale in execution of a decree transfers title in an occupancy (non-transferable) holding where the sale was not made with the prior consent of the landlord.
Whether the Plaintiffs proved that the landlord's consent or subsequent recognition sufficient in law to validate the sale was obtained.
Whether the judgment-debtor (Defendant) is estopped from raising the objection that the holding was a non-transferable occupancy holding and that no title passed at the auction-sale, having failed to raise that objection earlier in the execution proceedings or related litigation.
Whether the subsequent sale by the auction purchaser to the Plaintiffs was bonâ fide (as was suggested by the Appellants).

Arguments of the Parties

Plaintiffs-Respondents' Arguments

The Plaintiffs claimed title by purchase: their vendor (Dwarka Nath Saha) bought the 8 annas share at the auction-sale and after confirmation and delivery of possession they (and their vendor prior to transfer) were in possession and paid rents to the landlord, producing receipts.
They contended that the landlord's consent and recognition had been obtained as soon as could reasonably be expected after the sale and after obstacles raised by the judgment-debtor were overcome, and that such recognition and payment of rents validated the sale in law.
In reply to the estoppel point, the Respondents relied on the factual chronology showing opportunities to seek recognition and that the purchaser had applied for recognition at the earliest opportunity.

Defendant-Appellant's Arguments

Main contention: No right passed to the purchaser under the execution sale because the holding was an occupancy holding not transferable by custom and the sale was not held with the prior consent of the landlord; the Appellants relied on the case of Bhiramali Shaikh v. Gopi Kanth in support.
The Appellants also argued that the Plaintiffs failed to prove landlord consent either prior to or subsequent to the sale sufficient to validate the transfer; as a fact, landlords brought a suit for rents for years succeeding the sale (in 1898) against the old tenants, which they argued indicated that the landlord did not recognise the auction purchaser as tenant up to that time.
It was suggested that the Subordinate Judge did not make a finding whether the subsequent sale by the auction purchaser to the Plaintiffs was bonâ fide.
On the estoppel point, the Appellants urged that the Defendant would not be barred from raising the objection in his defence (relying on the authority of Bhiramali Shaikh v. Gopi Kanth as they interpreted it).

Respondents' Reply and Factual Responses

The Respondents' counsel emphasized the timeline of events showing that the auction was on 9 November 1894, the related suit was not decided until 8 July 1896, delivery of possession to the purchaser occurred only on 31 December 1898, and registration application was made in 1900 — demonstrating that the purchaser sought landlord recognition at the earliest opportunity.
They argued that it is impractical in execution-sales to obtain prior landlord consent because the purchaser is not known until after the sale; as in voluntary sales the common practice is to obtain landlord consent and recognition after the sale (e.g., by payment of salami).
They contended that the landlords' suit for rents up to 1898 was brought against old tenants because the auction purchaser had not yet obtained possession through the Court.
On estoppel, the Respondents relied on subsequent authorities (Sheikh Murullah v. Sheikh Burullah and Durga Charan Mondal v. Kali Prosanna Sarker) discussed by the Court to show that a judgment-debtor who had opportunity to raise the non-transferability objection at the time of sale and failed cannot later resist the purchaser after confirmation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bhiramali Shaikh v. Gopi Kanth	Relied upon by Appellants to support the proposition that a sale of a non-transferable occupancy holding made without the prior consent of the landlord would not transfer title.	The Court held that the ruling relied on could not be taken so far as to require prior landlord consent in all execution sales; the Court explained practical difficulties of obtaining prior consent in execution sales and held recognition and receipt of rents after the sale, obtained as soon as reasonably possible, can validate the sale.
Sheikh Murullah v. Sheikh Burullah	Discussed and applied to the estoppel point: where a judgment-debtor with full knowledge and opportunity failed to raise objection at time of sale that the holding was non-transferable, he cannot resist the purchaser after confirmation and the title vests in purchaser.	The Court agreed with Mr. Justice Mitra's reasoning in that case and applied it to hold that the Appellants were barred from raising the objection having had opportunity earlier and having failed to do so.
Durga Charan Mondal v. Kali Prosanna Sarker	Identified as a later case followed in Sheikh Murullah; supports the principle that a judgment-debtor who fails to raise the non-transferability objection at the time of sale cannot later resist the purchaser.	The Court treated this authority as underpinning the conclusion in Sheikh Murullah and relied on that line of authority to dispose of the estoppel/raising-objection point against the Appellants.

Court's Reasoning and Analysis

The Court's reasoning proceeded by examining the factual chronology, the practicalities of execution-sales, the conduct of the parties, and applicable authorities:

Chronology and delay. The Court highlighted that although the auction occurred on 9 November 1894, the heirs' claim and ensuing litigation meant the related suit was not decided until 8 July 1896; possession was delivered only on 31 December 1898; registration as tenant was sought in 1900; and the 8 annas share was sold to the Plaintiffs on 29 Magh 1902. These delays and successive objections affected when landlord recognition could reasonably be sought and obtained.
Practical impossibility of prior landlord consent in execution sales. The Court observed that in execution-sales it is generally impracticable for a landlord to give prior consent because the purchaser is not known until after the sale; accordingly the Court rejected a rigid rule that prior consent is always required before an execution-sale of an occupancy holding can transfer rights.
Post-sale recognition and receipt of rents. The Court accepted the Respondents' submission that where the landlord recognises the purchaser and receives rents from him as soon as can reasonably be expected after the sale (and after any objections raised by the judgment-debtor have been overcome), such recognition suffices in law to validate the sale. Applying the facts, the Court found that recognition and consent were effectively obtained as soon as reasonably possible in the circumstances.
Specific factual findings. The Court concluded that the evidence established that the 8 annas share of Dwarka Nath Pal passed to the auction purchaser (Dwarka Nath Saha) under the sale, that the transfer was recognised by the landlord, and that the purchaser and thereafter the Plaintiffs were in possession and had been paying rents.
on the landlord's suit for rents up to 1898: The Court explained that those suits were brought against the old tenants because the auction purchaser had not yet obtained possession under his purchase through the Court, not as proof that the landlord did not recognise the purchaser once possession and registration occurred.
Estoppel / bar to raising the non-transferability objection. The Court considered and adopted the reasoning in Sheikh Murullah v. Sheikh Burullah (following Durga Charan Mondal v. Kali Prosanna Sarker) that a judgment-debtor who had full knowledge of the execution proceedings and a full opportunity to raise the objection that the holding was non-transferable, but failed to do so at the time of sale, cannot later resist the purchaser after confirmation; title vests in the purchaser. The Court applied that principle to hold the Appellants were not competent to resist the purchaser on that ground.
Bona fides of the subsequent sale by the purchaser to the Plaintiffs. The Court treated the question of whether the purchaser's later sale to the Plaintiffs was bonâ fide as not requiring detailed consideration; the mere fact that the purchaser sold because he could not enjoy the property to his satisfaction due to obstacles raised by the Defendants does not by itself render that sale not bonâ fide.

Holding and Implications

APPEAL DISMISSED.

Holding (direct effect on the parties):

The Court affirmed the conclusion that under the execution-sale the 8 annas share of Dwarka Nath Pal passed to the auction purchaser Dwarka Nath Saha.
The Court held that the landlord's recognition and receipt of rents, obtained as soon as could reasonably be expected after the sale and after objections were overcome, validated the transfer in law.
The Court held that the Appellants were not entitled to resist the purchaser on the ground that the holding was an occupancy holding and non-transferable, having had opportunity to raise that objection earlier and failed to do so.
The appeal was dismissed with costs and the decree of the lower Appellate Court was left undisturbed, thereby sustaining the Plaintiffs' entitlement to a decree declaring their title and for partition of the 8 annas share.

Implications beyond the parties: The opinion reasons about the legal effect of landlord recognition after execution-sales and applies existing authorities on the bar to raising objections after a confirmed sale, but the text does not purport to establish a novel legal doctrine beyond the application of those authorities to the facts of this case.

Show all summary ...

The present appeal arises out of a suit brought by the Plaintiffs-Respondents, for a declaration of their title to and for partition of an 8 annas share in a certain holding in which they claimed title by purchase.

The Plaintiffs' case was that the holding in question originally belonged to one Dwarka Nath Pal and his brother, that in execution of a money decree obtained by one Dwarka Nath Saha against Dwarka Nath Pal the whole holding was put up to sale and was purchased on the 9th November 1894 by the decree-holder Dwarka Nath Saha. A claim was put in during those execution proceedings by the daughters of one of the brothers who claimed as such to be entitled to an 8 annas share of the holding. That claim was disallowed and thereupon the claimants brought a regular suit against the purchaser Dwarka Nath Shaha to have it declared that by the sale in execution of his decree only an 8 annas share belonging to Dwarka Nath Pal had passed to the purchaser and not the 8 annas share belonging to their father. The claimants appear to have died during the pendency of the suit and the Defendants' mother was substituted as their heir on their deaths. In the suit Dwarka Nath Pal was added as a pro formâ Defendant, it was decided on the 8th July 1896 in favour of the Plaintiffs and it was declared that the sale transferred to the purchaser Dwarka Nath Saha only the 8 annas share of Dwarka Nath Pal. On the 31st December 1898, Dwarka Nath Saha obtained delivery of possession of the 8 annas share and in 1900 he had his name registered as a tenant of the half share in the sherista of the landlord. On the 29th of Magh (1902) Dwarka Nath Saha sold the 8 annas to the Plaintiffs.

The Plaintiffs' case was that after the sale had been confirmed and possession had been delivered to their vendor, the vendor and, after the transfer to Plaintiffs, the Plaintiffs had been in possession of the half share of the holding and had been paying rents to the landlord and receiving receipts. On the basis of his title they claimed the relief sought in the suit.

The Defendant, Dwarka Nath Pal, in his defence contended that no right passed under the sale to the vendor of the Plaintiffs on the ground that the holding was one in which the tenant had only an occupancy right and it was not transferable by custom, and therefore by the sale the purchaser acquired no right.

The Court of first instance held that the jote was an occupancy jote and not transferable and it further held that as the sale had been made without the consent of the landlord, therefore no right was transferred by it to the purchaser Dwarka Nath Saha. The Munsif therefore dismissed the Plaintiffs' suit entirely.

On appeal the lower Appellate Court has set aside the judgment and decree of the Court of first instance and has found that the 8 annas share of Dwarka Nath Pal passed to Dwarka Nath Saha under the sale in the execution proceedings, that the transfer was recognised and consented to by the landlord and therefore that the purchaser acquired a valid title to the share. He also found that after the purchase the Plaintiffs' vendor and afterwards the Plaintiffs had been in possession of the 8 annas share and therefore they were entitled to the reliefs claimed, namely, a decree, declaring their title and for a partition of their share.

The Defendant has appealed to this Court. The main point which has been taken in support of the appeal is that under the sale in the execution proceedings no right passed to the purchaser as the sale was not held with the previous consent of the landlord, and in support of this contention the case of Bhiramali Shaikh v. Gopi Kanth(1) has been relied upon.

It has also been argued that the Plaintiffs have failed to prove such consent to the sale on the part of the landlord either prior or subsequent to the sale as would be sufficient in law to validate the sale and give the Plaintiffs a good title. It has been pointed out that after the sale and purchase in November 1894, the landlords brought a suit for rents for the succeeding years against the Defendant in 1898 and obtained a decree, and it is contended that this circumstance is sufficient to indicate that the landlords did not up to that time recognise the purchaser at the auction-sale as a tenant of the holding.

In reply to this conclusion, the learned vakil for the Respondents has very properly invited our attention to the following facts which in our opinion entirely nullify the strength of the argument. The auction-sale no doubt took place on the 9th November 1894 but after that the claim was preferred by the heirs of one of the brothers of the Defendants and when that claim case failed, a regular suit was instituted. That suit was not decided till the 8th July 1896. The purchaser afterwards applied for delivery of possession but that was not given until the 31st December 1898. Even after that date the present Defendant did not cease to raise obstacles to the enjoyment by the purchaser of the property. At the time of delivery of possession he put in an objection under sec. 318, C.P.C, and then for the first time raised the point that as the holding was an occupancy holding not transferable by custom, therefore no right passed to the auction purchaser. That objection was decided in the Court of first instance in 1899; but an appeal was preferred by the objector which was not dismissed till the 20th January 1900. An application was made by Dwarka Nath Saha to the landlord to be registered as a tenant in 1900. There can, in our opinion, be no doubt that under these circumstances, the purchaser applied at the earliest possible opportunity to the landlord to be recognised as a tenant and to have effect given to his purchase. We do not think that the ruling already referred to on which the applicants rely can be taken as going so far as to lay down that no sale of a non-transferable occupancy holding in execution of a decree would be valid if the consent of the landlord were not obtained prior to the execution proceedings. It is not denied by the learned vakil for the Appellants that in the case of a voluntary sale it is almost universally the practice to obtain the consent of the landlord to the sale after it has been effected, and the purchaser then obtains recognition as a tenant by payment of a salami. It can hardly be supposed that in the case of a sale in execution of a decree the consent of the landlord can be obtained prior to the sale, an in the first instance it could not then be ascertained who would be the purchaser and it would not then be possible for the landlord to come to any settlement with that purchaser. We think that where a settlement is made by the landlord with the purchaser as soon as can reasonably be expected after the sale and where the landlord afterwards recognises the purchaser and receives rents from him, it is sufficient to render the sale valid in law. In this case we think that the facts disclosed by the evidence sufficiently prove that the consent of the landlord to the sale and his recognition of the purchaser as a tenant were obtained as soon as could reasonably be expected after the objections and obstacles raised on behalf of the judgment-debtor to the purchaser's obtaining possession had been overcome, and we therefore hold that the view which the Subordinate Judge has taken is correct that under the sale the 8 annas share of Dwarka Nath Pal passed to the auction purchaser.

The suit by the landlords for the rents up to 1898 was brought against old tenants because they were still in the possession and the auction purchaser had not then obtained possession under his purchase through the Court.

It has been suggested on behalf of the Appellants that the Subordinate Judge has come to no finding whether the subsequent sale by the ??? to the Plaintiff was bonâ fide or not. We think that was a question which hardly requires consideration. The mere fact that the auction purchaser sold the share to the Plaintiffs because after his purchase he could not enjoy the property to his satisfaction in consequence of the obstacles raised by the Defendants would not be a sufficient reason by itself for holding that the sale was not a bonâ fide one. The conclusions at which we have arrived are in themselves sufficient to determine the present appeal. A further point, however, has been raised by the Appellant based on the judgment of this Court in the case of Bhiramali Shaikh v. Gopi Kanth Shaha, to which we have already referred. The learned vakil for the Respondents argued that after the present Defendant had failed at the time of the auction-sale in 1895 or in the suit to which he was a party in 1896 to set up the present objection, namely, that no title passed under the auction-sale as the holding was an occupancy holding and not transferable, he was estopped from raising that objection in the present case.

For the Appellants it has been urged on the authority of the case to which we referred that the Defendant would not be barred from raising the objection in his defence. We think, however, that this point has been sufficiently dealt with in the case of Sheikh Murullah v. Sheikh Burullah(2). Mr. Justice Mitra in disposing of that case which was similar to the present discussed the case on which the Appellants rely and following the ruling in a later case of Durga Charan Mondal v. Kali Prosanna Sarker(3), came to the conclusion that after a judgment-debtor with a full knowledge of the execution proceedings and full opportunity of raising an objection to the effect that the holding was an occupancy holding and non-transferable, had failed to raise that objection at the time of the sale, it was not competent to him to resist the purchaser after the confirmation of the sale, and that as between the purchaser and the judgment-debtor the title to the property vested in the purchaser on the confirmation of the sale. We agree in the view taken by the learned Judge in that case and we think that it fully disposes of the point raised. We therefore hold that the Appellants have failed to make out any good grounds for our disturbing the judgment and decree of the lower Appellate Court and we dismiss the appeal with costs.

S.C.S

Appeal dismissed.