1. This is an application by Sm. Kiron Sashi Dassee, the auction-purchaser at a Sheriff's sale held on the 5th September, 1945, for an order that the sale be set aside and that the money deposited by her be returned.

2. This sale was held in execution of a decree obtained by Baidyanath Mullick against Sm. Radharani Dassee in the Calcutta Small Causes Court, the decree having been transferred to this Court for execution. In execution of that decree, premises No. 19, Sarkar Bye-Lane, Calcutta, was attached, and on the 5th September, 1945, the right, title and interest of the judgment-debtor in those premises was put up to sale; the bid of the applicant, which was Rs. 11,500, was the highest bid, and the property was knocked down to her. The grounds upon which I am asked to set aside this sale are two: First, that the judgment-debtor had no saleable interest in the property sold and that in the circumstances I ought to set aside the sale under Or. 21, r. 91: Second, that there was a material irregularity or fraud in publishing or conducting the sale together with substantial injury to the applicant by reason of the irregularity or fraud, and that I ought to set aside the sale under Or. 21, r. 90.

3. On two previous occasions, namely, at the time of the application for execution by attachment of these premises and also at the time of the application for an order for sale of the premises attached, the point has been raised in this Court by the judgment-debtor that she has no right, title or interest in the property, and that it is debutter and belongs to two family deities, Sri Sri Sridhar Jew and Sri Sri Iswar Gopal Jew. That contention was not given effect to; but the auction-purchaser was of course not represented at the time that the orders of Court were made and is not at all affected by those orders. Since the sale one Ashalata Dassi, daughter of the judgment-debtor, has as next friend of the Idols instituted Suit No. 1471 of 1945 in this Court for declaration of their title in the premises, which suit is still pending.

4. The facts which are now asserted on behalf of the auction-purchaser in support of her contention that the judgment-debtor had no saleable interest in the property at the time of the sale are shortly these:— that on the 30th Kartick, 1315 B.S (corresponding with 15th November, 1908) one Binode Behari Kundu who was the then owner of the premises, by a deed of arpannama, made a dedication of the property to the two deities which I have already mentioned. That deed of dedication was duly registered, and it is said that in the circumstances the property vested absolutely in the deities, and from that time onwards Binode Behari Kundu and his successors had no interest in the property. From the date of registration of the deed Binode Behari Kundu was only a shebait. It is, I think, well settled that the mere execution and registration of a deed of dedication is not by itself effective to transfer immovable properties to family deities there must be something more than that; the person in whom the property was vested, the transferor, must divest himself of the property, and to that end there must be some facts which will show that this has been done, for, otherwise there is no sufficient evidence of intention that the deed be acted on. Mere registration of the deed is not enough. [See Watson & Co. v. Ramchund Dutt(1) and Ram Dhan v. Prayag Narain(2)]. It has been held in Dagai Dabee v. Mothura Nath Chattopadya(3) that what is required is a transfer of the apparent evidences of ownership. Now in this case the property concerned was a house, part of which, at any rate, was let out at rent; but there has been no evidence of any single fact other than the execution and registration of the deed that the property was intended to be transferred or was in fact transferred. No evidence has been led, for example, to show that from and after the registration of the deed of dedication rent receipts were given by the founder as shebait or that the rent received from the property was employed in the expenses of worship. It seems to me that such facts as have been shown in this application all go the other way. The Assessment Registers of the Calcutta Corporation show that from the date when Binode Behari Kundu became owner of the property which was in March, 1894, the property has always stood in his name and there was never at any time mutation of names in favour of the Thakurs. In paragraph 4 of the affidavit in opposition in this case the decree-holder asserted that the property was not aebutter and had all along been treated by Binode Behari Kudu and after his death by his wife Sm. Radharani Dassi as secular property, and in para. 2(m) he quoted from an affidavit made by the judgment-debtor in 1930 in which while asserting her title she quoted from a deed of 1919 a recital that Benode Behari Kundu had in fact been treating the property as his own secular property by receiving rent in his own name. In the affidavit in reply no attempt has been made to answer the contention that the property was in fact treated by Binode Behari Kundu as his own secular property.” Further it appears that on the 27th Joista, 1326 B.S (equivalent to the 10th June, 1919) Binode Behari Kundu executed a deed-poll by which he purported to revoke the gift which according to its face had been made by him by the previous deed of 1908: that action, in my opinion, is inconsistent with there having been in fact a perfected transfer to the deities. To hold otherwise I would have to come to a conclusion that Binode Behari Kundu was violating the trust which he himself created; and in the absence of any evidence that the trust ever did become effective I am not prepared to find that he was guilty of a breach of trust simply because he revoked the previous deed. Further, the actions of Sm. Radharani Dassi who was the second wife of Binode Behari Kundu and the administratrix of his estate, are all consistent with the position that there was no effective trust created and inconsistent with the contrary position. The facts to which I refer in this connection are the following:—

In 1928, Binode Behari Kundu died. Radharani who was his second wife applied for Letters of Administration to his estate which she stated included 19, Sarkar Bye-Lane. In 1929, she obtained permission to raise a loan on mortgage of No. 19, Sarkar Bye-Lane upon the allegation that she had a widow's interest and was the only person interested. In 1930, she as administratrix entered into an agreement for sale of this particular property and declared that it was free from encumbrances. In 1930, and again in 1931, she mortgaged the property. All these activities are quite incompatible with the situation that she had no interest in the property at all. For these reasons, quite apart from any recitals in the deed of revocation which I have mentioned, it seems to me that the Petitioner has not, succeeded in establishing that the property belongs to the two deities and that Radharani Dassee has no interest in the property which was sold at the Sheriff's sale.

5. In addition to the matters which I have mentioned there is the fact that in the deed of revocation Benode Behari Kundu recites as a fact that the arpannama was not acted upon save and except that it was signed and registered by him. He says then that he could not give effect to the conditions and provisions contained in the arpannama and at present he had no intention to act accordingly; and it was in those circumstances and others which he mentioned in the deed that he executed the deed of revocation. In my view Binode Behari Kundu being dead the facts stated in the recitals are admissible under sec. 32, sub-sec. (7) of the Evidence Act. I hold that in the facts of this case the applicant has not made out that the judgment-debtor had no saleable interest in the property sold.

6. The second point made by the judgment-debtor depends upon the circumstance that in the affidavit of searches, although the searches were conducted back to the year 1865, the deed of arpannama was not referred to, and it should have been referred to. The deed was, it is said, an encumbrance on the property, or was at any rate, within the meaning of Or. 21, r. 66(2e) of the Civil Procedure Code, a thing which was material for the purchaser to know in order to judge the nature and the value of the property. In the sale proclamation there was no reference to this deed of dedication. It seems to me that the omission to refer to the deed of dedication was a material irregularity within the meaning of Or. 21, r. 90. Two questions remain: (1) whether the auction-purchaser is entitled at all to apply under Or. 21, r. 90: and (2) whether assuming that he is entitled to apply it has been proved that the applicant has sustained substantial injury by reason of the irregularity. On the question whether he is entitled to apply at all I have come to the conclusion that he is not. The right of the auction-purchaser to apply has been the subject of considerable difference of opinion in the Courts in this country. The extent of the divergence is well set out in the dissenting judgment of Kulwant Sahay, J., in Mahadeo Ram v. Raja Mohan Vikram Sah*(4). I need not go into the details of it. The leading cases in support of the proposition that an auction-purchaser may apply are Ravinandan Prasad v. Jagarnath Sahu(5) which I have referred to, and Bhavirisetti Gopalakrishnayya v. Pakanati Pedda Sanjeeva Reddi(6). The contention in support of the proposition that an auction-purchaser can apply is founded upon the conclusion that the words in Or. 21, r. 90 “a person whose interests are affected by the sale” are so wide as to include any person whose interests are affected whether they are interests in the property or pecuniary interest apart from the property; such interest, it is said, need not have been in existence prior to the sale itself. In this Court, however, in Surendra Nath Das v. Allauddin Mistry(7), Mitter, J., sitting as a single Judge on the Appellate Side of this Court, came to the conclusion that the reference in Or. 21, r. 90 “to a person whose interests are affected by the sale” cannot be given so wide a construction. In his view they must be held to refer only to a person who has interest in the property and whose interest in the property existed prior to the sale itself and were not interests which were created by the sale. The reasons for his conclusion are based on historical grounds as well as on the words of the Rule. With great respect, I adopt the conclusion arrived at by Mitter, J., and the reasons he has advanced in support of it.

7. It seems to me that the crucial question is whether the word “interest” means interest in the property or interest which may be altogether apart from the property sold. It has been held by Suhrawardy and Page, JJ., in Dhirendra Nath Roy v. Kamini Kumar Pal*(8) that the phrase “a person whose interests are affected by the sale” is not limited to persons who have possessory or proprietory interests in the property, and that a pecuniary interest is also within the contemplation of the section; in that, case the interest concerned was an interest in the property, the applicant being a person who had effected a prior attachment on the property. I have not been referred to any case of this Court which supports the suggestion that the word “interests” can refer to interests other; than interests in the property. If “interest” does mean interest in the property, then the important word is the word “affect.” Upon plain English, it seems to me difficult to find that a person's interest in property can be affected by a sale if, prior to that sale, he had no interest in it at all. It seems to me that Mitter, J., is right when he holds that an auction purchaser who had no interest in the property prior to sale, is not within the words of Or. 21, r. 90.

8. There is a further question in this case, namely, whether the material on the record is sufficient to satisfy me that the applicant has sustained substantial injury by reason of irregularity. Now the representative of the purchaser who has verified, in the first place, the petition in this case and the affidavit in reply, has stated that he was deluded into bidding by the fact that there was no reference to the deed of dedication in the sale proclamation.

9. He has said that it is as a result of searches of various records that he has come to know of the true facts and in particular of the deed of dedication. He has not, however, said, which I think he should have said if it was the fact, that those searches were not made until after he had made his bid. There is no evidence before me at all as to when those searches were made and when in consequence, he first came to know of the fact that a deed of dedication had been executed. In this state of the affidavits, I do not think there is enough material to satisfy me, as the Petitioner is bound to do, that it was not till after the sale that he discovered the fact that a deed of dedication had been executed and registered. For this reason also I am of opinion that the case is not within Or. 21, r. 90.

10. This application must in my judgment be refused; in view of the fact that the application under Or. 21, rr. 90 and 91 has been refused, I must make the order which I do, confirming the sale.

11. The auction-purchaser must pay the costs of this application.

Solicitors: Messrs. P.C Ghose & Co. for the Applicant; P.C Rudra and D. Shome for the Respondent.