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1 - 6 of 6 (0.24 seconds)Sheikh Azmat vs Bibi Tamzan on 18 December, 1919
6. In my opinion the decision of the lower Courts is wrong. The lower Courts have held that, because the holding was a nontransferable one or was presumed to be such, the mortgage of a portion of the holding could not be held to be an incumbrance, as a mortgage of a non-transferable holding is invalid, and, since the mortgage of the non-transferable holding was invalid there could be no incumbrance which the auction-purchaser at the rent sale would be bound to annul under Section 167 of the Bengal Tenancy Act. My views on the question raised in this second appeal have been given in the judgment in the case of Sheikh Azmat v. Bibi Tamzan 56 Ind. Cas. 490 : 1 P.L.T. 108 : 5 P.L.J. 83 : (1920) Pat. 49 : 2 U.P.L.R. (Pat.) 19. There it was held that a usufructuary mortgage of a non transferable occupancy holding has an incumbrance under Section 161 (a) of the Bengal Tenancy Act which is an interest voidable en sale under Section 170(3). It was shown there, too, that there is nothing to show that Section 161(a) of the Bengal Tenancy Act relates to transferable holdings only, and that the cases of a mortgagee and a purchaser are clearly distinguishable for a sale is not in limitation of, but is a destruction of, the interest of the tenant. The decisions of the lower Courts and the cases on which they have relied turn on the point that a holding being non-transferable there can be no incumbrance. But taking it for granted that the general rule is that an occupancy holding is non-transferable, and it is only in exceptional cases, where a custom is proved, that the holding will be held to be transferable; it is strange that Sections 161 and 167 make no exception in the case of nontransferable holdings, and in fact in those sections there is no mention of a transferable or non-transferable holding at all. Plainly the Legislature intended those sections to apply to all holdings and did not confine them to those that are transferable.
Sital Chandra Majhi vs Parbati Charan Chakrabarti on 18 August, 1921
In Sital Chandra Majhi v. Parbati Charan Chakrabarti 69 Ind. Cas. 841 : 35 C.L.J. 1 : A.I.R. 1922 Cal. 32 Sir Asutosh Mookerjee and Panton, JJ., held that the relative rights of the purchaser at a rent sale and the mortgagee should be determined with reference to their position at the time of the rent sale; and if the purchaser at the rent sale has not availed himself of the privilege of annulling the mortgage within his prescribed period he holds the property subject to the mortgage and is entitled to redeem.
Bidhumukhi Dasi And Ors. vs Bhaba Sundari Dasi And Kala Kuti Bibi And ... on 30 June, 1920
So that, notwithstanding that Section 65 provides that 'rent shall be a first charge' on a tenure or holding, the purchaser must take steps as laid down in Section 167 for annulling the mortgage. If he does not do so within the time specified in Section 167, the mortgage remains an incumbrance even though the purchaser at the rent sale may be in the position of a first mortgagee.
Surat Lal Chowdhery vs Lala Murlidhar And Ors. on 9 July, 1918
In the case of Surat Lal Chowdhury v. Murlidhar 46 Ind. Cas. 921 : 4 P.L.J. 362 Roe and Coutts, JJ., holding that a purchaser under a rent-decree is not liable to be ousted by a person who purchases the same property in execution of a mortgage decree, stated:
Jog Narain Singh And Ors. vs Badri Das And Ors. on 7 August, 1911
11. The appellant has relied on the cases of Jog Narain Singh v. Badri Das 13 Ind. Cas.
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