JUDGMENT
Dawson Miller, C.J.
1. This is an appeal under Clause 10 of the Letters Patent from a decision of a single Judge [of this Court dated the 6th June 1918 see 49 Ind. Cas. 841.-Ed
2. The dispute is between the reversioners of a small holding of between 2 and 3 bighas of land and Zarpeshgidars holding under a deed granted by the mother of the reversioners during her lifetime. The property is valued in the plaint at Rs. 140. The case has been the subject of no less than seven decisions before coming to this Court for final determination, having been remanded twice by the High Court on second appeal for further findings. This unfortunate state of affairs is due primarily to the slipshod manner in which the case was presented in the pleadings and argued before the lower Courts and until litigants in this province realise the importance of having their cases presented in the pleadings so as to raise clearly and concisely the questions to be determined and argued, I am afraid such instances will continue not unfrequently to occur.
3. Bishun Mahton died sometime in 1903 or 1904. The exact date of his death it has been found impossible to determine with more precision on the evidence. He left a widow Musammat Ugmi and two daughters Bhodia and Gangia. Musammat Ugmi died in 1911. The daughters, who were the reversionary heirs to Bishun Mahton’s property after the death of their mother, are the plaintiffs in the suit. In July 1905 Musammat Ugmi being then a widow executed in favour of the defendants, Nos. 1 to 4 a Zarpeshgi of the property in suit. The sum advanced in consideration of the bond was Rs. 300. Of this sum Rs. 165 was stated to be to enable the widow to discharge a prior debt of her deceased husband. Rupees. 55 was to pay a rent decree obtained against the widow for arrears of rent due in respect of the property for a period of three years from 1309 to 1312 Fasli, corresponding to 1902 to 1905 A. D. The balance of Rs. 80 was said to be for sums due from the widow to the Zarpeshgidara themselves. It was found that the Rs. 55 was retained by the Zarpeshgidars themselves in order to pay off the decree for rent and was not in fact paid to the widow. It was also found that there was no proof of any debt of Rs. 80 due to the Zarpeshgidars and that this sum was not advanced. There was, however, proof that the Rs. 165 was advanced to the widow to pay her deceased husband’s prior debts and it was found that to this extent only was there any legal necessity on the part of the widow for the alienation of the property under the Zarpeshgi. It is clear, therefore, on these findings that so far as the Zarpeshgi is concerned, the advance taken by the widow was partly justified on the grounds of legal necessity and partly not, and even if the deed purported to grant more than the widow’s life interest it could, on the authority of Harikissan Bhagat v. Rajrang Sahai Singh 1 Ind. Cas. 434 : 9 C.L.J. 453 : 13 C.W.N. 544 and similar cases, be set aside by the reversioners on payment of the sum advanced for legal necessity, which was found to be Rs. 165 only.
4. The case, however, was complicated by the fact that the Zarpeshgidars failed to pay the amount due under the rent decree, although they had retained the money for this purpose out of the sum acknowledged in the Zarpeshgi deed to have been advanced to Musammat Ugmi. The result was that the property was put up for sale in execution and purchased by the defendant No. 5 in September 1908 and subsequently transferred by him to the Zarpesbgidars themselves. The only other principal defendants are Nos. 6 and 7 who ate co-sharers with No. 5. These seven defendants defended the action and are the present appellants. The remaining defendants are the thicadars.
5. It is only necessary to state the facts just mentioned to show that the sale of the property in execution of the rent decree during the widow’s lifetime did not arise out of any inability on her part to pay the amount due, she having raised the money for that very purpose and although the payment of rent and the alienation of property for that purpose, if circumstances render it necessary, can be justified on grounds of legal necessity the sale in execution in the circumstances would hardly appear to be justifiable on such grounds. Moreover, the facts show that at the time when the sale took place the defendants Nos. 1 to 4 were in possession as Zarpeshgidars and although they had retained a portion of the consideration payable by them under the deed to satisfy the decree, they nevertheless stood by and allowed execution to proceed, afterwards taking a transfer of the purchaser’s interest. These are all matters which create the gravest suspicion as to the good faith of these defendants. This consideration was one which very forcibly impressed the learned Munsif who tried the suit in the first instance. He same to the conclusion that the Zarpeshgidars (defendants Nos. 1 to 4) and the Thicadars (plaintiffs in the rent suit) conspired together to bring the holding to sale and, in order to create difficulties for the reversioners, allowed a third person (the defendant No. 5) to purchase at the ludicrously low price of Rs. 51, so that the Zarpeshgidars could then take a transfer from the auction-purchaser instead of themselves buying at the auction-sale and so rob the reversioners of their holding. The Munsif also found that the purchase at the auction sale only passed the life-interest of the widow, the decree-holders being fractional landlords only. He accordingly decreed the suit for possession on payment to the Zarpeshgidars of the sum of Rs. 165, the amount of the consideration found to have been paid to the widow and justified by legal necessity. With the other issues we are not now concerned. From this decision the defendants appealed and on the 10th July 1914 the District Judge allowed the appeal and dismissed the suit. On the question as to what interest passed at the auction-sale his judgment was somewhat perfunctory. He said: “Ugmi was a party to the rent suit and no fraud in connection with it is proved. I do not know why the Munsif has held that it binds the holding only so long as the widow’s interest lasted. Rent is a legal necessity and I hold that the rent decree had the full force of a rent decree.” The Munsif, as I have above indicated, had found, apart from other questions affecting the validity of the decree, that, as the decree-holders in the rent suit were not the whole body of landlords but fractional landlords only, the suit was not one within Section 148A of the Bengal Tenancy Act and the decree, therefore, had only the effect of a money decree. Hence, what passed at the auction-gale was not the holding itself but only the right, title and interest of the judgment-debtor, Musammat Ugmi, viz., her life-interest, and that the plaintiffs’ interest as reversioners did not pass by the sale. The learned District Judge on appeal does not appear to have considered this aspect of the case.
6. The plaintiffs then appealed to the High Court. On the 4th May 1916 the case came before a single Judge of the High Court, who set aside the decree and remanded the case for re-hearing. He considered it was essential to ascertain whether the amount claimed in the runt suit brought against the widow was for arrears which become due in her lifetime or in the lifetime of Bishun, her husband, he being of opinion that, in the latter event, the rent decree would pass an absolute interest in the holding notwithstanding the fact that the plaintiffs in that suit were some only of the co-sharer landlords. The date of Bishun’s death had not at that time been clearly ascertained. He also directed the Court to find how much of the Rs. 300, the consideration for the Zarpeshgi, was for legal necessity, the lower Appellate Court having come to no finding on this point.
7. The lower Appellate Court on remand found that Bishun died in 1310 or 1311 Fasli and, as part of the rent accrued during his lifetime, that an absolute title passed to the auction-purchaser, and dismissed the claim. The Court also found, agreeing with the Munsif, that Rs. 165 only of the Zarpeshgi money was advanced for legal necessity, that the Rs. 55 had been retained by the Zarpeshgidars to pay off the rent decree, which they never paid, and that the balance of Rs. 80 was never due to them.
8. The plaintiffs appealed from this decision to the High Court and the case was heard by a different Judge, who remanded the case again for the lower Court “to determine if the rents of the musammat’s time were such as would make the sale for those arrears for legal necessity.”
9. On second remand the lower Appellate Court found that there was no legal necessity for the sale of the holding in execution, as the decretal amount should have been paid out of the Zarpeshgi money, and, if the widow and the Zarpeshgidars between them failed to do this and allowed the property to be sold, it was obviously unjust that the reversioners should suffer thereby, When this finding was remitted to the High Court the learned Judge held that the sale, not being justified by legal necessity but being due to the neglect of the Zarpeshgidars themselves to pay the decree-holder out of the moneys they had retained for that purpose, was not binding on the reversioners and that they were entitled to redeem the property on payment of the sum of Rs. 165, the only portion out of the sum alleged to have been advanced by the Zarpeshgidars which was shown to have been for legal necessity. He accordingly allowed the appeal getting aside the decree of the lower Appellate Court, and restoring that of the Munsif.
10. From that decision the present appeal has been preferred by the defendants.
11. The appellants contended, first, that the Zarpeshgi granted by the widow to the defendants Nos. 1 to 4 entitled them to retain the property until the sum advanced was paid ‘off, and, secondly, that the interest which was purchased at the auction-sale in execution of the rent decree by defendant No. 5 and afterwards transferred by him to the Zarpeshgidars (defendants Nos. 1 to 4) passed an absolute interest in the property subject to encumbrances and not the life-interest of the widow only, and, as the only encumbrance was their own Zarpeshgi, the defendants Nos. 1 to 4 had acquired an absolute title to the property.
12. As to the first point, it has been found as a fact that the consideration money which actually passed to the widow was Rs. 165 and, therefore, the plaintiffs would be entitled to redeem on payment of this amount. The sum of Rs. 55, alleged to have been advanced for payment of the rent decree, would have been claimable on the ground of legal necessity either if this sum had been paid to the widow or if the defendants who retained it in order to satisfy the decree had discharged their obligation in that respect but this they failed to do.
13. With regard to the second point the case stands thus. The decree-holders were fractional landlords only and, therefore, the decree obtained by them did not operate as a rent decree under Section 143A of the Bengal Tenancy Act, and what passed at the sale was prima facie only the interest of the judgment-debtor, that is to say, the life interest of Musammat Ugmi. The learn-ed Judge, however, who remanded the case in the first instance held that, if the decree was for rent payable in the lifetime of Bishun, the sale would pass the whole interest in the property. It now turns out that the decree was for rent which accrued partly in Bishun’s lifetime and partly in that of his widow, the judgment-debtor. It has also been found that, in so far as the sale took place in execution of a decree for rent which accrued during the widow’s lifetime, there was no legal necessity for the sale. Moreover, the payment of rent by a limited owner is, in my opinion, a personal obligation on the part of the tenant and not a liability which affects the property as a whole, and the learned Judge who heard the appeal after the second remand came to the conclusion that, where a sale takes place under circumstances which render it partially voidable owing to the want of legal necessity, the whole sale must be set aside and the purchasers are only entitled to payment of that part of the judgment-debtor’s liability which justified the sale on the ground of legal necessity. From this it would appear to follow that whilst the plaintiffs could set aside the sale they would be under an obligation to pay to the auction-purchasers at all events a sum equivalent to the rent which accrued daring Bishun’s lifetime. In the present case, however, the auction-purchasers have transferred their interest to the Zarpeshgidars and have ceased to have any farther interest in the property. The Zarpeshgidars must, therefore, be treated as in the position of auction-purchasers and had the sale been justified even to the extent of the rent payable in Bishun’s lifetime on the ground of legal necessity, I think they would be entitled to recover from the plaintiffs the amount of that rent before the sale could be set aside. Borne confusion has arisen in this case in some of the judgments by a failure to keep clearly in mind the distinction between a debt the payment of which can be treated as a legal necessity and the sale of property for the purpose of discharging that debt. The payment of rent is clearly a legal necessity, but a sale of immoveable property for the purpose of discharging an obligation to pay rent is not necessarily justified on such grounds and unless it can be shown that there was no other ostensible means of satisfying the rent decree except by allowing the property to be sold at auction, it could not be held that the sale of the property as distinguished from the obligation to pay the rent decree was justified by legal necessity. In the present case it is abundantly clear that no legal necessity for the sale of the property in pursuance of the rent decree against the widow has been made out. What happened was that money was in fact raised by the Zarpeshgi granted to the defendants Nos. 1 to 4 for the very purpose of satisfying the rent decree. The defendants themselves retained out of the consideration money for the Zarpeshgi a sum of Rs. 55 for the purpose of satisfying the rent decree and had they carried out their obligation in this respect, the property would not have been sold. The only reason why the property was in fact sold was because the defendants Nos. 1 to 4 either wilfully or through neglect failed to carry out that part of their obligation. They cannot now be allowed to set up a title which is entirely based not upon any legal necessity but upon their own laches. The result is that the appeal must be dismissed. The respondents are entitled to their costs of this appeal.
Adami, J.
14. I agree.