Authored By : C.H. Hill, Robert Fulton Rampini, Banerjee

C.H. Hill, J.

1. The question raised by this appeal is one of someimportance. It is not, so far as I am aware, met precisely by any directauthority, but its solution depends, as it appears to me, on the application ofprinciples which have been recognized in analogous cases.

2. The facts are sufficiently simple. The plaintiffs and thefirst defendant are co-tenants of a 2 annas 13 gundas 1 cowri 1 krant share ina certain shikmi taluk, the name of the first defendant alone being registeredin respect of the share in the zemindars sheristha. The other shareholders inthe taluk have opened separate accounts with the zemindar. The third and fourthdefendants, who are fractional shareholders in the zamindari, sued the firstdefendant alone for the entire rent due in respect of the 2 annas 13 gundas 1cowri 1 krant share of the taluk for the years 1298 and 1299, and obtained adecree in execution of which the share in question was brought to sale andpurchased by the second defendant on the 11th December 1894. The plaintiffsnow sue to set aside this sale, alleging fraud and collusion between the firstdefendant and the third and fourth defendants, and contending further that allthat could, according to law, pass to the purchaser by the sale of the 11thDecember was the interest in the taluk of the first defendant, on which footingthey also ask for relief. It is only with the latter contention that we are nowconcerned, the former having been negatived by the findings of the Courtsbelow, and the sole question for our determination is whether the plaintiffsare entitled to the extent of their own interest in the taluk to have the salein execution set aside.

3. The suit was dismissed by the Lower Appellate Court, thelearned Subordinate Judge being of opinion that the case fell within theprinciples laid down by this Court in Jeo Lal Singh v. Gunga Pershad I.L.R(1884) Cal 996. He quotes with approval from the judgment of the Munsif thefollowing passage: "The defendant has proved, and it is to a certainextent admitted by the plaintiffs, that the share sold away (i.e., 2 annas 13gundas 1 cowri 1 krant share) stood in the name of the defendant No. 1 alone;that the zemindar used to sue defendant No. 1 for rent for the share; that thedefendant No. 1 used to realize a rateable share of costs, rent, cesses,&c, which he was bound to pay under the rent decree from the plaintiffssometimes amicably and generally by contribution suits; and that such was thestate of affairs for many years." He further finds specifically that it isproved that "the said taluk (comprising the 2 annas 13 gundas 1 cowri 1krant share) was sold and purchased by the defendant No. 2." Under thosecircumstances, and in view of the consideration that the third and fourthdefendants had sued the first defendant as representing the ownership of thewhole tenure, he considered that the sale ought to operate as a sale of theplaintiffs interest as well as of those of the first defendant and heaccordingly dismissed the suit.

4. It may be added that there was no question before us, or,indeed, throughout the suit, but that the plaintiffs were jointly interestedwith the first defendant in the taluk and liable equally with him in respect ofthe rent. Further, it was admitted that the proceedings in execution underwhich the second defendant purchased were bad under the provisions of the Codeof Civil Procedure. But I may point out with advertence to a consideration towhich some weight appears to have been given by Garth, C.J., in the case of JeoLal Singh v. Gunga Pershad I.L.R (1884) 10 Cal., 996 [LQ/CalHC/1884/108] , that the third and fourthdefendants being merely fractional shareholders in the zamindari had no optionbut to proceed with the execution of their decree under that Code. I may sayalso that after a careful examination of the documents bearing upon the sale ofthe tenure, I think the Subordinate Judge was right in holding that what wassold was the entirety of 2 annas 13 gundas 1 cowri 1 krant share in the taluk.I do not think it necessary in order to support this view to refer now to thesedocuments in detail, more particularly as the finding of the Subordinate Judgeon the point was not, as I understood, contested before us. The appellantscontented themselves here with the assertion of the principles that a person,who is not a party to a suit, cannot be affected in person or property byanything that is done in the suit, and that a sale in execution of a decreeheld under the provisions of the Code of Civil Procedure cannot pass anythingbeyond the right and interest of the judgment-debtor in the property sold.These they relied upon as general and indisputable propositions which needed noauthority in support of them; and they also placed reliance in particular uponthe cases of Kristo Chunder Ghose v. Rajkristo Bandyopadhya I.L.R (1885) 12Cal., 24; and Beni Madhub Roy v. Jaod Ali Sircar I.L.R (1890) 17 Cal., 390, aswell as on certain remarks made by the learned Judges who decided the case ofRadha Pershad Singh v. Ram Khelawan Singh I.L.R (1895) 23 Cal., 302 [LQ/CalHC/1895/113] .<p>

5. The first of these cases, however, does not appear to meto help the appellants or to be in point. What happened there was, that one oftwo shareholders in a zamindari brought a suit for rent against the personrecorded as tenure-holder. He obtained a decree, and under the provisions ofthe Code of Civil Procedure the interest of the judgment-debtor in the tenurewas brought to sale. Prior to the institution of the suit, however, thetenure-holder had transferred the tenure to certain persons from whom itdevolved upon the plaintiffs. The plaintiffs had frequently sought to compelthe landlords to register their names as transferees of the tenure, but withoutsuccess, and it was decided under these circumstances, firstly, that theplaintiffs might, notwithstanding the non-registration of their names, make agood title to the tenure under the transfer; and secondly that, if in point offact, the decree under which the sale in execution took place had been obtainedby a person who was interested in the zamindari only to the extent of 8 annas,the sale would pass only the rights and interests of the judgment-debtor. Thatwas, it seems to me, a wholly different case from the present. There, if theplaintiffs case were true, the rights and interests of the judgment-debtor atthe time when the sale took place were nil, while the plaintiffs were, to theknowledge of the landlord when he brought the suit (for that must be taken tobe so), exclusively entitled to the tenure. There was no question ofrepresentation in the case, or of any of the equities upon which the decisionof the Lower Appellate Court has proceeded in the present case.

6. Then, the case of Beni Madhub Roy v. Jaod Ali SircarI.L.R (1890) 17 Cal., 390, merely affirms the principle which is not disputed,that an attachment of a tenure or holding in execution of a, decree obtained bya fractional co-sharer for arrears of rent of his separate share is not such anattachment as is contemplated by Section 170 of the Bengal Tenancy Act; and itseems to me to be unnecessary to say anything more about it.

7. Lastly there is the case of Radha Pershad Singh v. RamKhelawan Singh I.L.R (1895) 23 Cal., 302 [LQ/CalHC/1895/113] , which, however, I venture to think,is quite as helpful to the case of the respondents as it is to that of theappellants. Briefly stated, the facts there were that the Maharajah of Dumraongranted a ticca lease to two persons, Nowrong and Ramanund, of a certainvillage. These two persons belonged to different families, but Ramanund was amember of a family consisting of several persons. The Maharaja obtained adecree for rent against Nowrong and Ramanund alone, and in execution of hisdecree he attached certain properties (other than those affected by the lease)which belonged to Ramanund and the other members of his family. Upon this aclaim was preferred by the other members of Ramanunds family to the propertyattached, on the ground that they were separate in estate from Ramanund, andthat they were in separate possession of the attached property according totheir respective shares. The claim was allowed; and then a suit was brought bythe decree-holder to have it declared that the other members of Ramanundsfamily were joint with him and participated in the benefits of the leaseholdproperty; that they were, therefore, liable to pay the amount covered by thedecree for rent; and that the properties which had been attached wereconsequently liable to be sold in execution of that decree. The first questionto which the learned Judges addressed themselves was whether such a suit wouldlie. That question they answered in the affirmative. They then went on toconsider whether the plaintiff was entitled to succeed on the merits and heldthat he was not. When introducing the discussion of the latter branch of thecase it is observed by Ghose, J.: "The success of the plaintiffs suitdepends upon proof that the defendants were members of a joint undivided familywith Ramanund, and that the decree was obtained against Ramanund in hisrepresentative capacity." The finding of the learned Judge on one of thequestions thus proposed, as well as his discussion of the evidence, haveunfortunately been left out of the report; but he sums up in these terms:"Upon all these grounds I am unable to say that the decree obtained by theMaharaja against Ramanund was in the latters representative character, andthat for satisfaction of that decree the property of the other defendants isliable to be sold." Prinsep, J., was, moreover, of opinion that theSubordinate Judge had rightly characterized the evidence brought to show theexistence of a joint Hindu family as "vague, conflicting andunsatisfactory." The remarks of Mr. Justice Ghose have, however, beenseized upon by the appellants as indicating that it is only in the case ofmembers of a joint undivided Hindu family that the doctrine of representationcan come in. But I venture to think that they cannot have been intended toconvey such a meaning. The suit was based wholly on the assertion of theprinciple that, in consequence of the fact of Ramanund and the other members ofhis family constituting a joint undivided family, they, as well as he, wereinterested in and took the benefits of the lease which stood in his name, andwere represented by him, and the only questions, therefore, which arose fordecision were whether, in point of fact, the family was joint and wasrepresented by Ramanund. It was only in so far as it bore on the case set up bythe plaintiff that it was necessary to lay down the law, and the remarks of thelearned Judge must be taken and understood in relation to the facts of the casethen before him. It would have been going far beyond the scope of the case topronounce any opinion upon the general question whether the doctrines ofrepresentation are inapplicable in the case of persons who are not members of ajoint Hindu family. The judgment of Prinsep, J., to which also reference wasmade, appears to me to carry the matter no further than that of Ghose, J. Thecase, however, appears to me to be of importance as recognising the principlewhich, indeed had often been recognised before, that a decree-holder may sue tohave it declared that the interests of third persons may be made liable for thesatisfaction of a decree made in a suit to which they were not parties,although the decree was one in execution of which ordinarily the rights andinterests of the judgment-debtor alone could be disposed of; and I think that,if such a suit will lie at the instance of a decree-holder, it must be open tothe defendant in a suit brought, as in the present case, to impugn a sale inexecution, to avail himself in defending the sale, of grounds similar to thoseupon which a decree holder might rely in the converse case. Indeed, it was laiddown by the Privy Council in Nanomi Babuasin v. Modhun Mohun I.L.R.(1885) 13Cal 21: IL.R., 13 I.A 1, that a purchaser at a sale in execution, if he hasbought the entirety, may defend his title on any ground which would havejustified the sale. That case was no doubt in its facts somewhat different fromthe present, but the principle is, I think, equally applicable here.

8. I now pass to the case made by the respondents. It is nopart of their case, I may observe, to controvert either of the rules, regardingthem as general propositions, upon which, as I have said, the appellants rely;and their case is, in effect, that the appellants were in fact co-sharers withthe first defendant in the tenure and were only, as such, interested in theshare of the taluk which was sold; that they were equally liable with the firstdefendant for the rent in respect of which the sale took place; that the firstdefendant, being the only registered tenant, represented the other co-sharersin the tenure; that the landlord was entitled to look to him alone as tenant;that the share of the taluk was sold in respect of the entirety of the rent;and that what was sold was the entirety of the share. And they contend that itwould be unjust and inequitable, under these circumstances, to allow the salenow to be set aside at the instance of the appellants.

9. I think that this contention ought to prevail. The casesshow clearly that the fact that a sale in execution has been had under theprovisions of the Code of Civil Procedure is not in itself conclusive of thequestion whether the interests of persons other than the judgment-debtor havepassed under the sale. It is sufficient to mention the cases of Radha PershadSingh v. Ram Khelawan Singh I.L.R (1895) ., 23 Cal. 302 [LQ/CalHC/1895/113] , and Jeo Lal Singh v.Gunga Pershad I.L.R (1884) 10 Cal., 996 [LQ/CalHC/1884/108] , to both of which reference has alreadybeen made, and the case of Jotendro Mohun Tagore v. Jogul Kishore I.L.R(1881) 7Cal 357, for the purpose of showing this. In the last mentioned case it is saidat p. 364 of the report: "It has been held over and over again, not onlyin this Court, but by the Privy Council, that the words right, title andinterest of the execution-debtor must not be construed strictly, but withreference to the circumstances under which the suit is brought, and the truemeaning of the decree under which the sale takes place. And this was the morenecessary in the case of sales which took place under the old Civil ProcedureCode, because by Section 249 of that Code the proclamation in every case wasfor the sale only of the interests of the execution-debtor. And as a matter ofform and practice all sales under that Act were of the right, title andinterest of the execution-debtor. It is, therefore, the duty of the Court ineach case to ascertain carefully what was intended to be sold," and this Ithink embodies the rule by which I ought to be guided in the present case.

10. The case of Jeo Lal Singh v. Gunga Pershad I.L.R (1884)10 Cal., 996 [LQ/CalHC/1884/108] , was strongly relied upon by the respondents in support of theircase generally; and unless it is distinguishable on the ground urged by theappellant it certainly appears to me to be conclusive in their favour. It was acase in which a fractional sharer in a zamindari estate brought a suit againstone Gupta Lal, the sole registered tenure-holder, for rent due in respect ofthe tenure. It appeared that Gupta Lal had two brothers who, along with him,constituted a joint family, and that Gupta Lal being the eldest brother was themanager of the joint property. The tenure was ancestral. The landlord havingobtained a decree brought to sale the rights and interests of Gupta Lal in thetenure, and the purchaser having taken possession of the whole tenure, thebrothers of Gupta Lal sued to recover their shares on the ground that nothingpassed by the sale beyond Gupta Lals interest. In delivering the judgment ofthe Court Garth, C.J., after discussing and distinguishing the cases of Doolarchand Sahoo v. Lalla Chabeel Chand IL.R (1878) 6 IndAp, 47, and Bissessur LallSahoo v. Luchmessur Singh IL.R(1879) 6 IndAp, 233, deduced from them these twogeneral propositions: (1) "When it is clear from the proceedings that whatis sold, and intended to be sold, is the interest of the judgment-debtor only,the sale must be confined to that interest, although the decree-holder mighthave sold the whole tenure if he had taken proper steps to do so, or althoughthe purchasers may have obtained possession of the whole tenure under the sale;(2) but if, on the other hand, it appears that the judgment-debtor has beensued as representing the ownership of the whole tenure and that the sale,though purporting to be of the right and interest of the judgment-debtor only,was intended to be, and in justice and equity ought to operate as, a sale ofthe tenure, the whole tenure then must be considered as having passed by thesale, and if the question is a doubtful one on the face of the proceedings, orone part of these proceedings may appear inconsistent with another, the Courtmust look to the substance of the matter and not to the form or language of theproceedings." The latter branch of this proposition, it may be mentioned,is founded on a passage in the judgment of the Privy Council in the case ofBissessur Lall Sahoo v. Luchmessur Singh I L.R(1879) 6 IndAp, 233, where it issaid "in execution proceedings the Court will look at the substance of thetransaction and will not be disposed to set aside an execution on meretechnical grounds when they find that it is substantially right." Havinglaid down these two propositions the learned Chief Justice then proceeds toapply the law to the case before him. He remarks that Gupta Lal was not onlythe manager but also the sole registered owner of the tenure, and that thefractional sharer in the zamindari took the ordinary and proper course of suingthe tenant who in the zemindars sheristha represented the entire tenure. Thejudgment then proceeds: "Moreover, when she had obtained her decree, shewas unable, as she only owned a share in the zamindari interest, to sell thewhole tenure under Section 59. She could only obtain her execution in the wayshe proceeded to enforce it, namely, by selling the right and interest of thejudgment-debtor under Section 64. But as between her and the persons interestedin the tenure she had a right to treat Gupta Lal as the sole owner of thetenure, and when she sold his right and interest for the rent due she was inour opinion selling the tenure itself. As his name was registered as the soleowner of the tenure he represented his brothers interest in it as well as hisown. The rent was due from them all, though he alone was sued for it, and asthey were equitably liable to pay the amount of the decree it was only justthat their interest as well as his should be sold to satisfy it.

11. Now with the one exception, that the first defendant inthe present case was not the manager of a joint Hindu family, it appears to methat it is incapable of being distinguished from the case before Garth, C.J.But it is said that fact in itself involves a vital distinction. I confess I amunable, on a very careful consideration of Sir Richard GarthS judgment, todiscover that he laid any particular stress upon that consideration. It iscertainly not referred to in the second of the two general propositions quotedabove-the particular proposition which he thought applicable to the case beforehim; and it is only referred to once in the latter part of the judgment where,so far as I am able to perceive, it occupies a very subordinate place. What thelearned Chief Justice does appear to me to insist upon are the considerationsthat Gupta Lal was properly sued as the registered tenant; that the person whosued him was incapable of obtaining relief otherwise than by selling the rightand interest of Gupta Lal; that she was entitled as between herself and thepersons interested in the tenure to treat Gupta Lal as the sole owner of thetenure; that by virtue of his being the sole registered owner he representedthe interests of his brothers; and that as the latter were equitably liable topay the amount of the decree it was only just that their interests as well asthose of Gupta Lal should be sold to satisfy it. All these considerations aredirectly applicable to the state of things existing in the case now before us,and are in my opinion sufficient to dispose of it.

12. Is there, however, the vital distinction contended forbetween the case of the members of a joint Hindu family who have put forward orallowed one of their members to represent them, and that of a group of jointtenants who not being so connected have done the same Without entering uponthe question of the position and authority of the manager of a joint Hindufamily, it would seem that the ultimate ground upon which the property of theremaining co-sharers may be made available for the satisfaction of a decreeobtained against him alone is simply their liability for the debt upon which thedecree is founded, and that liability arises in the case of a lease from thefact that they as well as the manager are interested in and take the benefit ofthe lease. Garth, C.J., in the case of Jeo Lal Singh v. Gunga Pershad held thatthe fact of the eldest brother alone being registered as tenant was sufficientto establish his representative character, there being in that case no questionof the interest of the remaining brothers in the tenure, which was ancestral.In Radha Pershad Singh v. Ram Khelawan Singh, Ghose, J., held that it lay onthe plaintiff only to show that the defendants were members of a jointundivided family with Ramanund, for the purpose presumably of establishing thenecessary community of interest; and that Ramanund was sued in hisrepresentative capacity. Given, in other words, the community of interest andthe necessary representation, and that is all that is required. Theseprinciples do not appear to me to be peculiar to the Hindu law or to berestricted in their application to cases in which one has to do with a jointundivided Hindu family. It seems to me that any group of persons might by theiraction place themselves in such a situation as to bring themselves within thesphere of their application. Thus in Nobin Chandra Roy v. Magantara DassyaI.L.R (1884) 10 Cal 924, for example, Garth, C.J., said: "It is clear thatif two out of three partners are sued for a debt due from the partnership and adecree is obtained against those two and execution issues against the partnershipproperty, if the third partner should apply successfully in the executionproceedings to have his share in the property released, the plaintiffs onlyremedy would be a regular suit, not for the purpose of making the third partnerpersonally liable for the debts, but for the purpose of making the share of thethird partner available to satisfy the decree." This was said not withadvertence to any doctrine peculiar to Hindu law, but, as I understand it,generally; and if a decree-holder may in such a case show that the property ofthe third partner is available for the satisfaction of the decree then, on theprinciple to which I have referred in an earlier part of my judgment, when thesale has actually taken place, the purchaser at an execution sale, if he besued by the third partner, may defend his title on similar grounds.

13. As to the equities, I am unable to perceive any materialdistinction between the case of persons subject to the Hindu law and of thosewho are not; or why if the property of a Hindu may be made available under thecircumstances now in contemplation that of other persons should be exempt. Nowin the present case the liability of the plaintiffs for the rent of the shareof the tenure in question, as a consequence of their community of interest init with the first defendant, is not disputed, and the learned Subordinate Judgehas found for the same reason as that upon which Garth, C.J., proceeded in JeoLal Singh v. Gunga Pershad that the appellants were represented as between themand the landlord by the first defendant. In this I certainly consider that hewas right. He has not, it is true, found in specific terms that the firstdefendant was sued in a representative capacity. But I take it he intended soto find, and looking at the substance of the matter I myself entertain no doubton the question. The first defendant was to the landlord the solerepresentative of the tenure, and as such was sued in respect of the entirerent; and it is found as a fact that on previous occasions "the zemindarsused to sue defendant No. 1 for rent for the share," and that he was inthe habit of afterwards realizing their proportion of what he was compelled topay from the plaintiffs, sometimes amicably, but generally by means ofcontribution suits not-a state of things which had gone on for manyyears." In no case does it appear that the plaintiffs disputed, at allevents successfully, their liability along with the first defendant for thesums recovered as against him alone as the person representing the tenure; andit is only now when the sale of the tenure has been brought about, that theyseek to repudiate him as their representative. It certainly appears to me thatthere are ample grounds here for holding that the first defendant was treatedby his co-sharers as their representative, and that he was sued in thatcharacter, and it appears to me that one of the primary objects which the rulesin relation to the registration of tenants is intended to subserve, which is, Ithink, to protect landlords from difficulties of the kind raised by theplaintiffs in this suit, would be defeated if it were to be held otherwise. Inthe case of Bissessur Lall Sahoo v. Luchmessur Singh IL.R (1879) 6 IndAp, 233,the Privy Council "assumed" the representative character of thedefendant, although there was nothing to show that he was the"manager" of the family which he was held to represent,--at least noreference is made by the Privy Council to that consideration; and it was inthat case that their Lordships laid down the principle to which I have alreadyreferred that "in execution proceedings the Court will look at thesubstance of the transaction and will not be disposed to set aside an executionupon merely technical grounds when they find that it is substantially right."

14. Having regard to all the facts and circumstances of thecase, I think it would be inequitable and would work manifest injustice if wewere now to set aside the sale in question at the suit of persons whoadmittedly were liable for the rent decreed against the first defendant, andwho, as it appears to me, were duly represented as between themselves and theirlandlord by the first defendant, not only qua the lease, but also in all theproceedings taken by the landlord to secure the recovery of the rent--persons,moreover, who make no offer, but take their stand simply on what they assert tobe their legal right.

15. The further question was raised whether the SubordinateJudge was right in his finding that the purchase by the second defendant was notbenami for the first defendant. But I see no reason for differing from thelearned Subordinate Judge on this point. I have not thought it necessary, I mayadd, to say anything specifically as regards the position of the seconddefendant as a bona fide purchaser without notice, as the case was placedbefore us simply on the grounds indicated above.

16. I would dismiss the appeal; but as my brother Rampinidiffers from me in this respect, the case must be submitted to the ChiefJustice in order that he may appoint a Judge to decide it. Our difference ofopinion, as I understand, relates to the effect to be given to the documents ofsale--a matter which, for reasons that I have already indicated, I do not,however, regard as conclusive of the case, and to the representation of theplaintiff by the first defendant.

17. Let the case be laid before the Chief Justice fororders.

Robert Fulton Rampini, J.

18. In this suit the plaintiffs sue to have the sale of acertain shikmi taluk, in which they have a share, set aside so far as they areconcerned, and to have it declared that the sale in question did not affecttheir interests in the taluk. The plaintiffs and the defendant No. 1 areadmittedly the owners of this shikmi taluk. It was sold on the 11th December1894 in execution of a decree for rent obtained by the defendants Nos. 3 and 4,who are fractional shareholders of the zamindari, against the defendant No. 1.The taluk was purchased at the sale by the defendant No. 2, who contends thathe purchased the whole taluk, and that the right of the plaintiffs as well asof the defendant No. 1 passed to him at this sale. The Subordinate Judge foundagainst the plaintiffs and dismissed their suit. They now appeal and contend onvarious grounds that his judgment is wrong.

19. It is sufficient, I think, for the purposes of thisappeal to confine our attention to the question whether the right of theplaintiffs can be regarded as having passed at the sale held in execution of adecree given in a suit to which they were no parties, and in my opinion thisquestion must be answered in the negative. The Subordinate Judge admits thatthe sale having taken place in execution of a decree obtained by fractionalshareholders in the zamindari cannot be regarded as a sale under the provisionsof the Bengal Tenancy Act. It must have been, he admits, a sale held under theprovisions of the Civil Procedure Code. This is also conceded by the learnedpleader for the respondents in this case. The learned Subordinate Judge, however,considers on the authority of the case of Jeo Lal Singh v. Gunga Pershad I.L.R(1884) 10 Cal., 996 [LQ/CalHC/1884/108] , that the defendant No. 1, who was the only tenant of theshikmi taluk recognized by the landlord, must be held to have represented theplaintiffs to the zemindar, and that being so, that their rights must beconsidered to have been affected by the decree in the suit against thedefendant No. 1, and the sale held in execution of the decree. The learnedpleader for the respondents adopts the same line of argument, and in support ofthe view taken by the Lower Appellate Court, the following cases have beencited, viz., Jotendro Mohun Tagore v. Jogul Kishore I.L.R (1881) 7 Cal., 357;Daulat Ram v. Mehr Chand I.L.R (1887) 15 Cal 70: IL.R., 14 IndAp, 187; Hari SaranMoitra v. Bhubaneswari Debt I.L.R (1888) 16 Cal 40: IL. R 151. A., 195; RadhaPershad Singh v. Ram Khelawan Singh I.L.R (1895) 23 Cal., 302 [LQ/CalHC/1895/113] , and Hari Vithalv. Jairam Vithal I.L.R. (1890) 14 Bom., 597. In all these cases, however, theregistered tenant or person held to represent the unregistered tenants orothers were held to represent the others under some doctrine of Hindu law.Thus, in the case of Jeo Lal Singh v. Gunga Pershad I.L.R (1884) 10 Cal 996,the joint holders of the tenure were all members of a joint Hindu family,governed by the Mitakshara law, and the registered tenant, who was held torepresent the others, was the managing member of the family. This was pointedout by Ghose, J., in the case of Radha Pershad Singh v. Ram Khelawan Singh I.L.R(1895) 23 Cal., 302 [LQ/CalHC/1895/113] , at p. 317 of the report. In that case, i.e., Radha PershadSingh v. Ram Khelawan Singh, the persons interested in the lease were alsomembers of a joint Hindu family governed by the Mitakshara law, but as it washeld that the ostensible lessee was not sued in his representative capacity,the other persons interested in the lease were not found to be bound by thesale which took place in execution of the decree obtained against him. Thefacts of Daulat Ram v. Mehr Chand I.L.R (1887) 15 Cal., 70:I L.R., 14 IndAp,187, are similar. In the cases of Jotendro Mohun Tagore v. Jogul Kishore I.L.R(1881) 7 Cal., 357, and Hari Saran Moitra v. Bhubaneswari Debi I.L.R (1888) 16Cal 40: IL.R., 15 IndAp, 195, the defendant was a Hindu widow, who was on thisground held to represent the others interested in the property.

20. But these cases seem to me to be no authority forholding that the plaintiffs in this case are bound by the sale held inexecution of the decree obtained against the defendant No. 1, for (1) it doesnot appear that the plaintiffs and the defendant No. 1 are members of a jointHindu family; (2) they are not said to be governed by the Mitakshara law; (3)there is nothing to lead to the conclusion that the defendant No. 1 was sued asrepresenting them; and (4) it does not appear that what was sold was the shikmitaluk. On the contrary, from the proclamation of sale (Exhibit C), the salecertificate (Exhibit D), and the order confirming the sale (Exhibit 15), it isclear, I consider, that the sale which took place under Section 316 of the Codeof Civil Procedure purported to convey only the right, title and interest ofthe judgment-debtor, defendant No. 1, in the shikmi taluk. A consideration ofthese documents in detail seems to me to put this matter beyond a doubt. Thefirst of them, the proclamation of sale (Exhibit C) issued under Section 287 ofthe Code of Civil Procedure proclaims that "the property of the aforesaidjudgment-debtor" (i.e., defendant No; 1) "as mentioned in the followingSchedule shall be sold." The sale certificate (Exhibit D), declares thatwhat was sold was "the judgment-debtors right to the 2 annas 13 gandas 1cowri 1 krant share in the said taluk." The order confirming the sale,(Exhibit 15), commences with the preamble that "whereas the followingtitle, ownership and interest were on the 11th day of December 1894 sold by theNazir," and concludes by certifying that "the sale proceeds of thejudgment-debtors right to the 2 annas 13 gandas 1 cowri 1 krant share in thetaluk amounted to Rs. 160."

21. Further, both the lower Courts have, I think, found as afact that what was sold was the right, title and interest of thejudgment-debtor, defendant No. 1. Thus, the Munsif at page 11 of the paper booksays: "It appears, moreover, from Exhibit C, Exhibit D, Exhibit 12, andExhibit 15, that the interest only of defendant No. 1 in the property purchasedin the name of the defendant No. 2 was sold at the execution of the rentdecree. Consequently, on that ground also the sale does not and did not affectthe right and interest of the plaintiffs in the property sold and purchased inthe name of the defendant No. 2 by defendant No. 1." The Subordinate Judgedoes not displace this finding of fact of the Munsif. On the contrary, he seemsto accept it, for at page 16 he says: "it was contended that in the salenotification, the right, title and interest of the judgment-debtor wasadvertised for sale. But that does not confine the property to be sold to theinterest of the defendant No. 1 alone. By right, title and interest of thejudgment-debtor it means the right, title and interest of all the co-sharers ofthe taluk, i.e., plaintiffs and defendant No. 1, the former being as muchjudgment-debtors of the decree as the latter who had been sued as representingall the holders of the shikmi taluk." I cannot, however, agree to theinterpretation put by the Subordinate Judge on the terms of the proclamation ofsale, there being nothing, as already said, on the record, as far as I can see,to show why the defendant No. I should or could represent the plaintiffs in therent suit, or that he did do so, and therefore I can see no reason why theplaintiffs property should be held to have passed at the sale of the right,title and interest of the judgment-debtor, defendant No. 1, in the taluk--asale held in execution of a decree obtained in a suit in which they were notparties. This sale was certainly not one under the Bengal Tenancy Act, and thepurchaser, defendant No. 2, cannot have purchased the whole tenure, nor can theplaintiffs right be affected by it. In support of this view, I would cite thecases of Kristo Chunder Ghose v. Raj Kristo Bandyopadhya I.L.R.(1885) Cal., 24;Beni Madhub Boy v. Jaod Ram Sircar I.L.R (1890) 17 Cal 390, and Jagan NathGoral v. Watson & Co. I.L.R (1892) 19 Cal 341. These cases seem to me to beample authority for the view taken by me. It would indeed be impossible, Ithink, for defendants Nos, 3 and 4, by suing under the Civil Procedure Code, toproceed to attach and sell the property of persons not parties to the suitbrought by them and in no way shown to have been represented in it.

22. I would accordingly set aside the judgment of theSubordinate Judge and restore that of the Munsif.

23. There being a difference of opinion between the twolearned Judges, the case was referred, under Section 575 of the Civil ProcedureCode, to Mr. Justice Banerjee, who delivered the following judgment:

Banerjee, J.

24. This appeal arises out of a suit which, after theamendment of the plaint allowed by the first Court, must betaken to have beenbrought by the plaintiffs, appellants, for setting aside the sale of a shikmitaluk sold in execution of a decree as fraudulent and collusive, or in thealternative, for obtaining a declaration that the sale did not affect therights of the plaintiffs; and for recovering possession of the plaintiffsshares in the shikmi taluk.

25. The main allegations upon which the suit was broughtwere, that the plaintiffs and defendant No. 1 were owners of a 2 annas 13gandas 1 cowrie 1 krant share, bearing a separate rent, of a shikmi taluk namedKanai Balai; that defendants Nos. 3 and 4, the proprietors of a certain shareof the estate under which the shikmi taluk was held, brought a suit for arrearsof rent due to them in respect of that share of the shikmi taluk and obtained acollusive decree; and in execution of that decree the defendants 3 and 4fraudulently suppressing the usual sale proclamation brought about a sale, atwhich defendant No. 1 purchased the said share of the taluk benami in the nameof defendant No. 2.

26. The defendant No. 2, who alone contested the suit,denied the allegations of collusion, fraud and benami, and urged that the rentsuit had been rightly brought against defendant No. 1, who was the sole personregistered in the landlords sheristha as the holder of the share of the talukin question; that the sale in execution of the rent decree was properly held;and that he was a bona fide purchaser of the shikmi taluk on his own behalf andnot as benamdar for any one.

27. The first Court held that defendant No. 2 had purchasedbenami for defendant No. 1, and that the sale in execution of the decree passedonly the right, title and interest of the judgment-debtor, defendant No. 1 andit accordingly gave the plaintiffs a decree.

28. On appeal, the Lower Appellate Court has reversed thatdecree and dismissed the suit, holding that the allegation of fraud was notmade out; that defendant No. 2 had purchased on his own behalf, and thatdefendant No. 1 being the only person registered in the zemindars sheristha inrespect of the share of the shikmi taluk in question, the sale in execution ofthe decree for rent against him passed not only his own share but that of theplaintiffs as well.

29. Against that decision the plaintiffs have preferred thisappeal on the ground that the sale in question could not pass anything morethan the share of defendant No. 1. And as the two learned Judges before whomthe appeal was heard have differed in opinion, the case has been referred to meunder Section 575 of the Code of Civil Procedure.

30. The contention on behalf of the appellants is that asale in execution of a decree cannot affect the interest of any person who isnot a party to the suit, and that the case of Jeo Lal Singh v. Gunga PershadI.L.R (1884) 10Cal., 996, upon the authority of which the Lower Appellate Courthas dismissed this suit, is distinguishable from the present case, as thedecree in that case was against a person who was not only the registered tenantin respect of the tenure for which the rent was claimed, but was also themanaging member of a joint Hindu family governed by the Mitakshara law, and wastherefore rightly held to represent the other members of the family who broughtthe suit for reversal of the execution sale. On the other hand, it is contendedfor the respondents that, though the person against whom the rent decree waspassed in the case of Jeo Lal Singh v. Gunga Pershad was a managing member of aHindu family, the decision of this Court is based, not upon that fact, but uponthe fact of his having been the registered tenant in respect of the tenure forwhich rent was claimed.

31. Mr. Justice Rampini accepts the appellants contention ascorrect, while Mr. Justice Hill takes the view contended for on the other side.

32. After considering the arguments on both sides, I agreewith Mr. Justice Hill in thinking that this case must be governed by that ofJeo Lal Singh v. Gunga Pershad I.L.R (1884) 10 Cal, 996 [LQ/CalHC/1884/108] , and that the decisionof the Lower Appellate Court is correct.

33. The general rule, no doubt, is that a sale in executionof a decree cannot affect the interest of any one who is not a party to thedecree. But the rule is subject to certain exceptions; and upon the facts foundby the Lower Appellate Court the present case comes under one of theseexceptions, namely, the one enunciated by Garth, C.J., in Jeo Lal Singh v.Gunga Pershad in the following manner: "But if on the other hand it appearsthat the judgment-debtor has been sued as representing the ownership of thewhole tenure, and that the sale, although purporting to be of the right andinterest of the judgment-debtor only, was intended to be, and in justice andequity ought to operate as, a sale of the tenure, the whole tenure then must beconsidered as having passed by the sale. And if the question is a doubtful oneon the face of the proceedings, or one part of those proceedings may appearinconsistent with another, the Court must look to the substance of the matterand not the form or language of the proceedings."

34. And a little further on Sir Richard Garth adds:"Now in the present case, Gupta Lal, the defendant No. 4, was not only themanager but the sole registered owner of the tenure, and Adhikari Koer inclaiming against him the entirety of her share of the rent, took the ordinaryand proper course of suing the tenant who in the zemindars sheristharepresented the entire tenure."

35. The facts found in the present case are, that the sharesold away (that is 2 annas 13 gandas 1 cowri 1 krant share) stood in the nameof defendant No. 1 alone; that the zemindars used to sue defendant No. 1 forrent for the share; that the defendant No. 1 used to realise a rateable shareof costs, road cesses, etc., which he was bound to pay under the rent decreefrom the plaintiffs, sometimes amicably and generally by contribution suits,and that such was the state of affairs for many years," and "that thedefendants Nos. 3 and 4, who are fractional shareholders of the zamindari, suedthe defendant No. 1 as usual, for rent of 1298 and 1299 obtained a decreein execution of which the said taluk (comprising the 2 annas 13 gandas 1 cowri1 krant share) was sold and purchased by defendant No. 2 on 11th December1894."

36. It is clear, therefore, that here, as in the case of JeoLal v. Gunga tershad I.L.R (1864) 10 Cal., 996 [LQ/CalHC/1884/108] , the person sued for rent wasthe sole registered holder of the tenure in question, and that the persons whobrought the rent suit and caused the sale of right, title and interest of thejudgment-debtor in the tenure were some of the shareholders in the zamindariand sued the registered tenant, as usual. It is true that in the case cited,the person sued for rent was also the manager of the joint family that ownedthe tenure, but that circumstance is only incidentally noticed, and does notform any ground for the decision arrived at.

36. The reason for the decision is that, as the law requiredtenants to register their names in the landlords office, unregisteredco-owners of a tenure by their omitting to have their names registered, must betaken to have acquiesced in the registered tenant representing them in theirdealings with the landlord; that in a suit for rent against the registeredtenant, he must be taken to have been sued as representing the ownership of thewhole tenure; and that a sale in execution of the decree obtained in such asuit, though in terms only a sale of the right, title and interest of thejudgment-debtor, must be held really to pass the right, title and interest, notonly of the registered tenant, but also of the unregistered co-owners whom herepresents; and that reason holds good quite as much in this case as in thecase relied upon.

37. The principle enunciated by Sir Richard Garth in thecase of Jeo Lal Singh v. Gunga Pershad I.L.R (1884) 10 Cal., 996 [LQ/CalHC/1884/108] , in thepassage quoted above, no doubt contains an important condition which must besatisfied, namely, that the sale in question must be one which "in justiceand equity ought to operate as a sale of the tenure." Having regard to thefacts found the this case, namely, that the position of affairs for many yearswas for the defendants 3 and 4 to sue defendant No. 1 alone for the rent andfor defendant No. 1 to realise from the plaintiffs the amount payable by them;that the amount covered by the decree in execution of which the sale tookplace, was really due, and that the plaintiffs took no steps to pay the amountof rent due in respect of their share, I think the above condition is fullysatisfied.

38. It was contended by the learned Vakil for the appellantsthat as the plaint in the rent suit brought against defendant No. 1 did notstate that he was the sole registered tenant, there was nothing on the face of theexecution proceedings to show that the decree was made against defendant No. 1as representing the ownership of the whole tenure, and so defendant No. 2 couldnot have bid for and purchased anything more than the share of defendant No. 1.I do not consider this contention valid. The defendant No. 1 was sued as theperson representing the ownership of the whole tenure for the whole rent due onaccount of the same in respect of the shares of defendants Nos. 3 and &;and intending purchasers could, and in all likelihood did, ascertain what wasthe fact, namely, that the defendant No. 1 was the sole registered tenant inrespect of that tenure.

39. It was then contended for the appellants that the LowerAppellate Court was wrong in dismissing the suit without coming to any findingupon the question of value which had an important bearing upon the questionwhether the sale was intended to be, and ought in justice and equity to operateas, a sale of the whole tenure and not merely of the right, title and interestof defendant No. 1. The question of value may have some bearing upon the lastmentioned question; but the plaintiffs do not appear to have raised thequestion in that form in either of the Courts below. It is true they said intheir plaint (paragraph 4) that the property was sold for an inadequate price;but they said so only to support the allegation that the sale was fraudulently(brought about by suppressing the issue of the sale proclamation, and theirallegation of fraud has bean found by the Lower Appellate Court notestablished.

40. As for the cases of Kristo Chunder Ghose v. Raj KristoBandyopadhya I.L.R (1885) 12 Cal., 24 [LQ/CalHC/1885/121] ; Beni Madhub Roy v. Jaod Ali Sircar I.L.R(1890) 17 Cal, 390, and Radha Pershad Singh v. Ram Khelawan Singh I.L.R (1895)23 Gal., 302, relied upon in support of the appeal, I think they are quitedistinguishable from the present case as Mr. Justice Hill has shown.

41. I, therefore, agree with Mr. Justice Hill in thinkingthat the decision of the Lower Appellate Court is right, and that this appealought to be dismissed with costs.

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Nitayi Behari Saha Paramanick and Ors. vs. Hari Govinda Saha and Ors. (17.03.1899 - CALHC)

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