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Lelong (Jumea) vs Rajani Kanta Chowdhury on 5 March, 1918

Calcutta High Court
Lelong (Jumea) vs Rajani Kanta Chowdhury on 5 March, 1918
Equivalent citations: 46 Ind Cas 417
Author: Richardson
Bench: Richardson, Beachcroft


JUDGMENT

Richardson, J.

1. The Courts below have differed on the question whether a certain non-occupancy raiyati holding is saleable in execution of a decree for money. In the execution Court the learned Munsif held in favour of the judgment-debtor, the raiyat, and set aside the sale. The decree-holder appealed to the District Judge by whom the Munsif’s decree was discharged and the sale confirmed. The appellant before us is, therefore, the judgment-debtor.

2. “In my opinion”, says the learned District Judge, “the decision of the point now raised depends upon the terms of the respondent’s pattah, and it is not necessary to enter into any general consideration. The pattah prohibits any kind of transfer without the consent of the landlord, but if any such transfer takes place the landlord has the right of getting khas possession of the land. In view of this provision of the pattah, my opinion is that a transfer, voluntary or involuntary, is not void but is merely voidable at the instance of the landlord. Upon this view the tenant cannot raise the point of non-transferability.”

3. I agree that the point is not one which the judgment-debtor is entitled to raise. His learned Pleader referred to Narayani v. Nabin Chandra Chowdhari 36 Ind. Cas., 803 : 25 C.L.J., 351 at p. 353 : 44 c. 720 : 21 C.W.N. 400. It was there held, applying the principles governing the transfer of occupancy holdings laid down by the Full Bench in Doyamoyi v. Ananda Mohan Chowdhury 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.), that an occupancy raiyat has the right to object to the sale of his holding in execution of a money decree obtained against him. But that is a right peculiar to the occupancy raiyat. It is part of the fixity of tenure which he enjoys under the law, part of the privileges annexed to his status. The non-occupancy raiyat has not the same fixity of tenure, nor the same status or right. His holding is saleable in execution of a decree, like any other property, for what it may be worth. If the terms of his lease give the landlord a right of re-entry in the case of a transfer without the landlord’s consent, that may raise a question between the purchaser, if any, at the Court sale and the landlord but does not clothe the raiyat with a right to object to the sale. There is nothing to prevent his interest, however small it may be, from being sold, if a purchaser can be found for it.

4. In my opinion this appeal must be dismissed with costs. We assess the hearing fee at one gold mohur.

Beachcroft, J.

5. I agree.

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