AYYANGAR - (1.) THE following Judgment of the court was delivered by :
(2.) THIS is an appeal preferred, by virtue of a certificate of fitness granted by the Calcutta High court, against its judgment, by which the decree passed by the Subordinate Judge of Darjeeling was substantially affirmed. The plaintiffs are the appellants before this court. The suit out of which the appeal arises was brought by the appellants claiming title to and the recovery of possession of a property known as the Azamabad Tea Estate which comprised about 378 acres of land in Touzi No. 911 of the Darjeeling Collectors. This property was set out in Schedule A to the plaint and besides a claim was also made to certain other items of the movable and certain other tenures, but this appeal is not concerned with these others which were set out. in Schs. B and C to the plaint. One Kazi Azam Ali was admittedly a full owner of this entire property and the proceedings giving rise to the appeal are concerned with the rights of his heirs to it. The plain- tiffs claim their title on the basis of various purchases from the heirs of this Azam Ali. The contesting defendants were the Azamabad Tea Co. who also claim the entire property as transferees from the National Agency Co. Ltd., who too have been impleaded as defendants. The National Agency Co. Ltd. claim to have purchased the entire 16 as. interest in the property at a court sale in pursuance of a decree obtained by them against Kazi Mohammed Ismail, the eldest son of Azam Ali. Various contentions were raised by the plaintiffs in challenge of the validity of the transactions by which the defendants claimed their title. But the learned Subordinate Judge repelled the plaintiffs' claim and held that the purchase by the National Agency Co. Ltd. was valid and extended to the entire interest in the property and that in consequence the plaintiffs' vendors had no title to convey to them any interest in the property. The plaintiffs' claim of the property in respect of Sch. A was therefore dismissed. The plaintiffs preferred an appeal to the High court and the learned Judges upheld the title of the plaintiffs to an 8 pies share in the property mentioned in Sch. A to the plaint but confirmed the decree of the Subordinate Judge as regards the rest. The learned Judges however granted a certificate of fitness to the plaintiffs on the strength of which the present appeal has been filed. The history of the transactions before the suit occupies a period of over 20 years and the facts in relation thereto are at once long, voluminous and complicated. But, for the disposal of the appeal and the points urged before us it is wholly unnecessary to set these out and we shall therefore confine ourselves to a narration of the bare outlines of the case along with those facts which are necessary to appreciate the contentions raised in support of the appeal. The property covered by the Tea Estate was granted by government by way of lease to one Mudir and another for 30 years, the term to start on the 1st of April 1898. The grantees effected transfers of their lease-hold and after several successive transfers the property was purchased in 1913 by one Kazi Azam Ali who got his name registered as a proprietor. It was Azam Ali who started the tea garden. constructed the requisite factories as accessories thereto and named it the Azamabad Tea Estate. Azam Ali had several children and among them 8 daughters and in consideration of gifts made to them, these daughters by a registered deed executed in 1909 relinquished their rights of succession to Azam Ali. They thus faded away from the picture and no more notice need be taken of them. Besides these 8 daughters, Azam Ali had 8 sons who survived him and were among his heirs, when he died on 8/06/1917. Mohammed Ismail was the eldest of these sons. Azam Ali also left behind him a daughter who was born after' the relinquishment of 1909 and three widows. Admittedly the sons of Azam Ali, his widows and his last daughters were all his heirs entitled to his estate in the shares as prescribed by Muslim Law. On Azam Ali's death his eldest son--Ismail-had his name entered in the government records as the next in succession and at the time the thirty years term of the lease expired, the lease continued to remain in the name of Ismail alone.
(3.) WE now proceed to the transactions as a result of which the contesting defendants claim to have obtained the full title to the Tea Estate. Ismail made large borrowings and among them were some from the National Agency Co. Ltd. and for securing the loan he deposited with them the title deeds of the Tea Estate. It may be mentioned that the deposit was on the footing that he was the full owner of the 16 as. share of the property mortgaged. The amount due under the mortgage was not paid in time and the mortgagee filed a suit for the enforcement of its mortgage and prayed for the sale of the property for the realisation of the mortgage money. The suit was decreed as prayed for and the property was sold in execution of the final decree and was purchased by the mortgage-decree holder on 24/09/1931. The sale was confirmed on 13/11/1931. This decree-holder purchaser sold the property to the Azamabad Tea Estate--the principal respondent before is. There was some little controversy as regards the reality and effectiveness of the transfer of the property from the National Agency Co. Ltd. to the Azamabad Tea Estate, but nothing turns on this, for even if that transfer was not effective that would not help the plaintiffs so long as they could not displace the title of the National Agency Co. Ltd. under the latter's court auction purchase. The case of the plaintiffs rested on the fact that Ismail who got himself registered as if he were a full proprietor of the lease-hold interest in Touzi 911 was merely one of several co-sharers of Azam Ali's estate to whom it passed on his death. The lease-hold which was his property was according to them inherited by all his heirs including Ismail, the seven other sons, the three widows and the daughter born after 1909. The term of the lease granted by the government expired in 1928 and a renewed lease was granted in the name of Ismail alone. Rival contentions were urged as regards the effect of this circumstance on the right of Ismail. It was the case of the contesting respondents that the lease granted in 1928 in favour of Ismail was his sole and individual 1929 property and even if for any reason the other heirs of 1930 Azam Ali had an interest in the previous lease-hold, they did not have any such interest in the property covered by the fresh lease. On the other hand, the case of the plaintiffs was that by the renewal of the lease, Ismail obtained qua his co-heirs the same interest as he formerly had in the lease of 1898. The renewal, they stated, was for the benefit not merely of Ismail but for everyone of his co-heirs who still retained his or her interest in Azam Ali's estate. On this basis the plaintiffs raised the contentions that when by the sale in execution of the mortgage decree obtained by the National Agency Co. they purchased the property mortgaged, it was only the interest of Ismail that passed to them and not those of his co-sharers who were no parties to the mortgage, ;