Calcutta High Court
Brahamdeo Narain Singh vs Ramdown Singh on 29 June, 1908
Equivalent citations: 17IND. CAS.125
JUDGMENT
1. This is an appeal in an action for a declaration that the decree obtained by the defendants first party against the defendants second party for arrears of rent is fraudulent and inoperative as against the plaintiff and for recovery of the sum of money paid by the plaintiff for satisfaction of the said decree. The plaintiff said that he was compelled to pay the amount as his mortgage right, which he had obtained by assignment from the third party defendants, would have been jeopardized by the sale for arrears.
2. The lower Courts have held that the annual rental of the holding was Rs. 22, whereas in the rent suit the claim was at the rate of Rs. 60 and that no arrears were due and still the first party defendants had sued the second party defendants and obtained a decree. The lower Courts have accordingly found that the decree was fraudulent and was intended to defeat the right which the plaintiff had obtained by assignment from the defendants third party.
3. Two questions have been argued before us. The first is that the holding, to a portion of which the plaintiff has obtained a mortgage right, was not transferable by custom or local usage and the lower Courts did not come to any finding on this question. The second is that certain documents which were tendered in time were improperly rejected.
4. As regards the second contention, the lower Court exercised its discretion in rejecting the documents and no ground has been made out for our directing the lower Court to receive them.
5. As regards the first point, the contention raised is that, for the purposes of this appeal, it must be assumed that the holding was not transferable and the plaintiff, having a mortgage interest in respect of a portion, has no locus standi to sue and he cannot question the validity of the decree.
6. We are of opinion that this contention is not sound. In Kabil Sardar v. Chunder Nath Nag Chowdhry 20 C. 590 the Court held that a purchaser of a portion of a non-transferable holding could not be ejected. He has a subsisting right though the landlord may not recognise him. The landlord only looks to the recorded tenant. But the right cannot be denied and in the present case, the right would have been seriously affected, if the amount of the decree had not been paid by the plaintiff. We cannot hold that the plaintiff had no locus standi. We accordingly dismiss this appeal with costs.