1. The facts connected with the litigation out of whichthese appeals arise, may be stated as follows.

2. The lands in dispute are included in a Permanent tenurecalled Taluk Kamdeb Guha appertaining to the zamindari mahal No. 2694 belongingto the plaintiff-appellant. The taluk was sold in execution of a rent decreeand purchased by one Ganga Charan in 1864, who sold it to four persons,Ramsagar, Gokul, Krishnapriya and Chandrakala, who were members of the Guhafamily to whom the taluk belonged before the sale under the rent-decree. Thefirst three mortgaged a 14-annas 4-gundas share of the taluk to certain personswho sued and obtained a decree upon the mortgage and one Chandra Kumar Boseostensibly purchased the said share at the sale held in execution of the saiddecree, but it has been found that Chandra Kumar was the benamdar of the saidmortgagors. The fourth purchaser from Ganga Charan, viz., Chandrakala, appearsto have had a 1-anna 16-gundas share in the taluk, which on her death devolvedon her three sons in equal shares, two of whom Ananda and Iswar mortgaged their1-anna 4-gundas share to one Kashinath, whose successors-in-interest (who aredescribed in these cases as the Chakravartis and the Kanjibalis) purchased thesaid share at a sale held on the 1st June 1888 in execution of a decreeobtained upon the said mortgage. These Chakravartis and Kanjibalis depositedthe landlords fee as required by Section 12 of the Bengal Tenancy Act but itwas not accepted by the plaintiff, as Iswar and Ananda whose interest theypurchased or their mother had not got their names registered in the plaintiffssherista. It appears that out of the four persons named above who purchased thetaluk from Ganga Charan in 1864, only Ramsagar and Gokul got their namesregistered in the landlords sherista and it was from them that the landlordused to realise rent for the tenure amicably or by suit. After the death ofRamsagar and Gokul, the landlord in 1889 brought a suit for rent against thefour sons of Ramsagar and the widow of Gokul and the taluk having been sold inexecution of the decree was purchased by one Chandra Kumar Chakravarti on the 17thMarch 1890. Then another decree was obtained for rent in 1890 for the periodprior to the said sale. When execution of this decree was taken out, a mortgage(kistibandi) bond was executed by Chandra Kumar Chakravarti, Dinamani (widow ofGokul) and by three other persons who were members of the Guha family, viz.,Rasik, Sonatan and Amar, in which it was stated that Chandra Kumar Chakravartiwas the real owner of the taluk by purchase. From that time, the zemindar suedChandra Kumar alone for rent, the last suit being No. 2767 of 1893. At the salein execution of the decree passed in that suit, the taluk was purchased by oneManitara on the 29th April 1895. By this time, the zemindar suspected thatChandra Kumar and Manitara were benamdars for the Guhas, and in the next tworent suits Nos. 1572 of 1895 and No. 1574 of 1895, he joined the four sons ofRamsagar and the widow of Gokul (who were the defendants Nos. 4 to 8 in thatsuit), and Rasik, Sonatan and Amar who had joined Chandra Kumar in thekistibandi mortgage-bond and were made defendants Nos. 1 to 3, the 9thdefendant in the 1st suit being the said Chandra Kumar and the 9th defendant inthe second being Manitara. The defence of the first eight defendants in thosetwo rent suits was that defendants Nos. 4 to 8 (the heirs of Ramsagar andGokul) were the real owners of the taluk, that the defendants Nos. 1 to 3 hadno interest therein and that the defendant No. 9 Chandra Kumar in the firstsuit and defendant No. 9 Manitara in the second, were the real auction-purchasersand decrees for rent should be passed against the said purchasers in each suit.The Court, however, found that Chandra Kumar and Manitara were benamdars, thatdefendants Nos. 1 to 3 had no interest in the taluk and that defendants Nos. 4to 8 were the real owners of the taluk, and accordingly passed decrees againstthem. In execution of the decree in suit No. 152 of 1895, the taluk was soldand purchased by the zemindar decree-holder on the 20th June 1898 and heobtained delivery of possession through Court on the 29th July 1899. Thejudgment-debtors applied to have the sale set aside, but the application wasdismissed and the order of dismissal upheld up to this Court. On the plaintiffattempting to take khas possession, the judgment-debtors set up severalunder-tenures and notices under Section 167 of the Bengal Tenancy Act werethereupon served upon them and the plaintiff instituted several suits forrecovery of possession.

3. In three cases, it was found that the notices were notserved within the time allowed by law and with respect to those three theplaintiff instituted three rent suits which gave rise to Second Appeals Nos.3625 to 3627. In the other two cases, the notices were served in proper timeand they were for possession of the lands in respect of which the defendantshad set up under-tenures.

4. The defence of the defendants, so far as it is necessaryto state for the purpose of the present appeals, substantially was that as someof the owners of the taluk, viz., the Chakravartis and Kanjibalis, were notmade parties to the rent suit of 1895, the decree cannot operate as a decreefor rent under the Bengal Tenancy Act and the sale held in execution of such adecree could not pass the taluk free of incumbrances, and the under-tenuresheld by the defendants, therefore, were not affected by the sale.

5. These two suits (which gave rise to Second Appeals Nos.3624 and 2902) were decreed by the Munsif, but on appeal, the suits weredismissed; on second appeal (Second Appeal No. 2719 of 1914) the cases wereremanded to the lower Court and that Court again decreed the suits. There wereagain second appeals (Second Appeals No. 2627 of 1907 and analogous appeals)and this Court was of opinion that if the Chakravartis and Kanjibalis had any subsistinginterest at the date of the institution of the rent suit in 1895, the suitsmust be dismissed, but if they had no subsisting interest at that time, thesuits must be decreed, and the Court below was directed to determine the saidquestion.

6. On remand, the learned Subordinate Judge came to theconclusion that the Chakravartis and Kanjibalis had a subsisting interest inthe taluk at the date of the rent suit, and accordingly dismissed the suits.The Second Appeals Nos. 3624 and 2902 have been preferred by the plaintiffsagainst the said decision.

7. The question for consideration in these appeals,therefore, is whether the Chakravartis and Kanjibalis had any subsistinginterest at the date of the rent suit in 1895.

8. As regards the question of possession of the 1-anna4-gundas share, the learned Subordinate Judge said: "were it necessary tocome to a decision on this point, I would have unhesitatingly held that theGuhas were all along in possession of the land, that the Chakravartis and Kanjibalisnever received rent from them and that evidence of payment of rent to and grantof dakhilas by the latter is concoction, pure and simple, to defeat the claimof the plaintiffs," but he was of opinion that as there was no conveyanceby the Chakravartis and Kanjibalis in favour of Iswar and Ananda, norpossession for the statutory period by the latter, the former were not divestedof their right and no title was created in favour of the latter. But hisfinding as to whether the Chakravartis and Kanjibalis relinquished their righton receipt of the decretal amount was not clear and definite. We accordinglyremanded the case for a definite finding on the point. The finding has now beenreturned to this Court and the Court below has clearly found that the Chakravartisand Kanjibalis relinquished the share purchased by them on receipt of thedecretal amount from the Guhas. As stated above, the Court below was of opinionthat notwithstanding that the Chakravartis and Kanjibalis disclaimed theirtitle to and possession of, the share purchased by them, the Guhas could nothave acquired any title to the share for want of a registered conveyance andrelied upon the case of Jadu Nath Poddar v. Rup Lal Poddar 4 C.L.J. 22 : 10C.W.N. 650 : 33 C. 967.

9. We think that the Court below is wrong in the view ittook of the legal effect of the relinquishment in the present cases. It istrue, a mere admission or disclaimer cannot operate to pass title to propertywhere a conveyance is required under the law to transfer title. In the caserelied upon, there was a release executed by the real owner in favour ofanother person in order to protect his property from the claims of hiscreditors. The nominal transferee sold a portion of the property to another.The creditors were riot defrauded and it was held that the real owner couldrecover the property from the benamdar and the transferee from him. There is anobservation of Mookerjee, J., that the title of the real owner could not passby an admission. But in that case, the original transferee and the purchaserfrom him, were found not to be bona fide purchasers for value, and they werefully aware of the real nature of the transaction. It was under thesecircumstances, that Mookerjee, J., observed that title could not pass by a mereadmission. In the case of Musammat Oodey Koowur v. Musammat Ladoo 13 M.I.A. 585: 15 W.R.P.C. 16 : 6 B.L.R. 283 : 2 Suth. P.C.J. 388 : 2 Sar. P.C.J. 628 : 20E.R. 669 in a suit to redeem a mortgage of an estate A, in order to avoid anobjection taken as to parties, filed a petition disclaiming all interest in theestate. The Judicial Committee held that in the circumstances and in theabsence of any consideration given to A, the petition did not operate as aconveyance of As right or as an estoppel to a suit by her for possession ofthe estate. Mookerjee, J., relied upon that case and observed that althoughunder certain circumstances a person may be estopped from setting up a title inhimself, title of the real owner could not pass by mere admission. The opinionexpressed in that case was followed by Mookerjee and Beachcroft, JJ., in DharamChand Boid v. Mouji Shahu 16 Ind. Cas. 440 [LQ/CalHC/1912/391] : 16 C.L.J. 436. There a partnershipbusiness was sought to be transferred by means of a deed of release. It doesnot appear that any consideration was paid or that there were circumstanceswhich would in equity have precluded the transferor from challenging thevalidity of the transfer.

10. In the present case, the matter did not rest upon a mereadmission. The Chakravartis and Kanjibalis on receipt of consideration gave uptheir rights as purchaser in favour of the Guhas and it is found that theformer never took possession and the latter were allowed to remain inpossession of the property. There is no doubt that the Guhas could sue theChakravartis and Kanjibalis for specific performance. They could havesuccessfully resisted a suit by the latter if they sued the Guhas forpossession of the share. It is contended on behalf of the respondents, thatunder Section 54 of the Transfer of Property Act and Section 12 of the BengalTenancy Act) there can be no transfer except by a registered conveyance. Butthe equitable principle is well-established and we need only refer to Walsh v.Lonsdale (1882) 21 Ch. D. 9 : 52 L.J. Ch. 2 : 46 L.T. 858 : 31 W.R. 109 andPuchha Lal v. Kunj Behary Lal 20 Ind. Cas. 803 [LQ/CalHC/1913/397] : 18 C.W.N. 445 : 19 C.L.J. 213decided by Jenkins, C. J., and Mookerjee, J. In the latter case, a purchaserunder an unregistered conveyance paid the agreed price to his vendor and wasplaced in possession, and it was held that in the absence of circumstancesshowing that such purchaser was not entitled to sue his vendor for specificperformance, a subsequent purchaser of the property under a registeredconveyance could not succeed in a suit to recover possession of the propertyfrom the former purchaser. Coxe, J., relied upon the provisions of Section 54of the Transfer of Property Act and was of opinion that the transaction was anullity and that the vendor himself was not estopped from disputing thevalidity of the transaction. He was, however, overruled by the Court of Appeal,and Jenkins, C. J., observed: "There is no invasion or evasion of theRegistration Act. It is merely securing a party those rights to which he is entitledapart from the Act rights to which he has a good title in Courts to which theabiding direction has been given to proceed in all cases according to equityand good conscience."

11. In the recent case of Mohamed Musa v. Aghore KumarGanguli 28 Ind. Cas. 930 : 42 I.A. 1 : 19 C.W.N. 250 : 17 Bom. L.r. 420 : 42 C.801 : 21 C.L.J. 231 : 28 M.L.J. 548 : 13 A.L.J. 229 : 17 M.L.T. 143 : 2 L.W.258 : (1915) M.W.N. 621 where by a compromise made in a suit in 1873, it wasagreed that mortgaged property should be released from two mortgages, themalikana being thenceforth allotted in agreed proportions to the two mortgageesand the mortgagor, and that the latter should execute deeds of absolute sale ortransfer of the proportions allotted to the respective mortgagees, a decree wasmade in pursuance of the compromise, but the compromise agreement was notregistered, nor were the transfers executed. All parties, however,thenceforward acted in every respect as if the transfers had been made, andthere were dealings both by the mortgagor and the mortgagees with the sharesallotted to them under the agreement. In 1908, a suit was instituted to redeemthe mortgages and it was held by the Judicial Committee:

That whatever defects of form there might be in relation tothe compromise agreement as a transfer of the equity of redemption, were curedby the conduct of the parties in continuously acting upon it, and that theright to redeem the mortgages was extinguished." Their Lordships observed:"The point which is made against giving effect to this compromise, is thata conveyance was not made by Khodajanessa in completion of the contract ofpurchase narrated in the razinama. This is true. But no written conveyance bythe law of India was at the date of that transaction necessary, the Transfer ofProperty Act not being passed until the year 1882.

But even if transfer in writing had from a conveyancingpoint of view been omitted, or if some other formal defect had occurred, theirLordships are of opinion that this would have been unavailing to the appellantsin the attempt made in the present suit to redeem the mortgages. For the pointsagainst opening up the transaction, are manifold and are in their Lordshipsopinion conclusive. The compromise has been acted upon by all the parties toit, and by their successors-in-title from that date to this." Thenreferring to the case of Maddison v. Alderson (1883) 8 App. Cas. 476 : 52L.J.Q.B. 737 : 49 L.T. 303 : 31 W.R. 820 : 47 J.P. 821 their Lordshipsobserved: "Their Lordships do not think that there is anything either inthe law of India or of England inconsistent with it, but, upon the contrary,that these laws follow the same rule. In a suit, said Lord Selborne in Maddisonv. Alderson (1883) 8 App. Cas. 476 : 52 L.J.Q.B. 737 : 49 L.T. 303 : 31 W.R.820 : 47 J.P. 821 founded on such part performance (and the part performancereferred to was that of a parol contract concerning land) the defendant isreally charged upon the equities resulting from the acts done in execution ofthe contract, and not (within the meaning of the Statute of Frauds) upon thecontract itself. If such equities were excluded, injustice of a kind which theStatute cannot be thought to have had in contemplation, would follow.

12. It is contended on behalf of the respondents that allthe cases where the above principles were applied were cases between partiesclaiming under the contract, that the Chakravartis and Kanjibalis are noparties to these suits and neither the plaintiffs nor the Guha defendants claimunder them. But the plaintiffs purchased the tenure of which the Ohakravartisand Kanjibalis were at some time part owners and they had given up their rightsin favour of Iswar and Ananda, and the Guhas set up the rights of those personsas having had a subsisting interest in the taluk when the rent suit wasbrought. If the contention of the respondents were valid, a creditor cannotavail himself of any estoppel or equities to which his debtor is entitled. Ifthe debtor paid the purchase-money for a property and the vendor deliveredpossession of the property to him, the creditor cannot according to therespondents contention avail himself of the equities arising from thetransaction. We do not think that this case can be distinguished in principlefrom the cases cited above; and we are of opinion that the Chakravartis andKanjibalis having given up their rights on receipt of consideration and allowedthe Guhas to remain in possession of the 1-anna 4-gundas share, were precludedfrom setting up any title against the Guhas, and they had no subsisting rightto the share at the date of the suit for rent. In the rent suits, the Guhadefendants stated that they were the only owners of the taluk, but that theirinterest had passed to Chandra Kumar and Manitara who had purchased the talukat sales held in execution of previous rent decrees. They did not say a wordabout the Chakravartis and Kanjibalis having any subsisting interest in thetaluk. Kamini Chakravarti, the head of the Chakravartis, was examined in therent suits, and he disclaimed all interest, in the taluk. The Court found thatChandra Kumar and Manitara were benamdars for the Guhas, and it was the Guhas(the defendants Nos. 4 to 8 in these suits) who were the real owners of thetaluk and exclusively liable for rent, and it is they who now plead that theChakravartis and Kanjibalis had a subsisting interest at the date of the suit.

13. It is contended on behalf of the respondents that thequestion of relinquishment or estoppel was never raised before; the only-questionraised being whether the Chakravartis and Kanjibalis were benamdars and thatthe order of remand made by Mookerjee and Beachcroft, JJ., precludes us fromconsidering the said questions. We do not think that there is any substance inthis contention. The plaintiffs did not allege in their plaint that theChakravartis and Kanjibalis were benamdars; it was the defendants who set uptheir title, and when Kamini Chakravarti was exainined, the question ofrelinquishment was raised. The question of relinquishment was considered by theMunsif so far back as the 15th February 1907 in certain suits between theparties. The question of relinquishment and the equities arising from it areinvolved in the decision of the question whether the Chakravartis and Kanjibalishad any subsisting interest, which Mookerjee and Beachcroft, JJ., by theirremand order directed the lower Court to determine. It is contended that theonly question for decision which the remand order contemplated was whether theChakravartis and Kanjibalis were benamdars for the Guhas. But if they werebenamdars for the Guhas, we fail to see how any question of their having asubsisting right, could arise. Then it is said that the learned Judges whoremanded the case would have gone into the question of relinquishment and theother contentions founded upon it, had the question been raised before them.But the fact of relinquishment on receipt of consideration had not been foundbefore the case was remanded, and in the absence of such a finding, the questionof equitable considerations could not be gone into. Admittedly the Chakravartisand Kanjibalis did not execute any conveyance. The question whether theirinterest had determined otherwise than by execution of a conveyance forexample, by relinquishment operating as estoppel or giving rise to equitableconsiderations was, therefore, involved in the order of remand and in no wayinconsistent with it, and we do not see how we are precluded by the remandorder from going into those questions when the remand order directed the Courtbelow to decide the question whether the Chakravartis and Kanjibalis had anysubsisting right at the date of the rent suit.

14. From what we have said above, it, is clear that theChakravartis and Kanjibalis had no subsisting interest at the date of the rentsuit and that their rights had vested in the Guhas. The suit for rent,therefore, was brought against proper parties and the sale held in execution ofthe rent-decree passed the entire, taluk with power to annul incumbrances. Noticesunder Section 167 of the Bengal Tenancy Act having been served in the two titlesuits, the under-tenures set up by the Guhas, must be held to have beencancelled.

15. These two appeals (Appeals Nos. 3624 and 2902 of 1912)are accordingly decreed, the decrees of the Court of Appeal below are set asideand those of the Court of first instance are restored with costs here and inthe Court below.

16. Appeals Nos. 3625, 3626 and 3627 arise out of three rentsuits mentioned above. The lower Appellate Court gave a decree for rent inrespect of only 14-annas and odd gundas share, but having regard to our findingthat the Chakravartis and Kanjibalis had no subsisting right, the plaintiffsshould get a decree for the entire rent and the decrees of the lower AppellateCourt will be varied accordingly, the result being that the suits will bedecreed in full with costs in all Courts.

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Khagendra Nath Chatterjee and Ors. vs. Sonatan Guha and Ors. (19.08.1915 - CALHC)