Pradyot Kumar Banerjee, J. - (1.) This appeal at the instance of the claimant arises out of a reference under sections 18 and 30 of the Land Acquisition Act against an award made by the Special Land Acquisition Collector. Cross, objections by the respondents, namely, the United Bank of India, Jagannath Roy' Balarara Roy of Bhagyakul and Tapan Kumar Mookherjee were filed. All the objectors obtained decrees against the owners whose property was acquired under the Land Acquisition Act. namely, Ramdas Mukherjee and Nilmani Mukherjee. The appellant herein is Indumati Banerjee who was the heir of late Indu Bhusan Banerjee who purchased from Renuka Debi the l/3rd share of the part acquired property in execution of a money decree against Ramdas Mukherjee in 1955. it is alleged, long before the award and taking over of possession of the lands by the Land Acquisition Collector. There are other claimants against the judgment-debtors who were the owners of the acquired land, that is Ramdas Mukherjee and Nilmony Mukherjee. The United Bant of India based its claim on a mortgage bond of 1947 which was executed by Ramdas Mukherjee and Bamandas Mukherjee, the father of Nilmoni Mukherjee and by a deceased brother of theirs. The claim of the United Bank of India so far as their dues under the mortgage are concerned is not challenged. The United Bank of India obtained a decree in Suit No. 555/55 of the Original Side of the High Court on the basis of a hand-note executed by Ramdas Mukherjee alone. In execution of that decree a portion of the acquired property was attached on 14th January, 1957. The said attachment was subsisting at the date of the award and also at the date of delivery of possession of the lands taken by the L.A Collector, that is, 27th March, 1957. It is alleged that the amount under the decree against Ramdas Mukherjee in his personal capacity is realisable out of the compensation money. The Roys of Bhagyakul based their claim on a decree in Suit No. 996 of 1949 of the Original Side of the High Court and the said decree was put into execution in M. Ex. Case No. 22 of 1951 of the Subordinate Judges 2nd Court, Hooghly and the (acquired) property was attached in the said execution case on 31st January, 1952. The Roys of Bhagyakul put the decree in execution for a claim of Rs. 217679/-. The United Bank of India claimed Rs. 8128/9/6p. The claim of the appellant in this case is that she is entitled to 1/3rd share in the acquired property as she purchased the same from Renuka Debi, auction purchaser in Money Execution Case No. 15 of 1953. Before the auction sale, the property was attached in Money Execution Case no. 15 of 1953 by Renuka Debi and Renuka purchased the said property in auction held by the Court on 13th August, 1955. The sale was confirmed on 17th August, 1955. Renuka sold the property to the predecessor-in-interest of the appellant for a sum of Rs. 7000/-
(2.) The property was notified for acquisition under section 4 (1) of the Land Acquisition Act on 9th January, 1956 and there was a declaration made under section 6 of the Land Acquisition Act on 4th October, 1956. The award in the land acquisition case was made by the Collector on 16th February, 1957 and the possession of the land in question was taken under section 16 of the Land Acquisition Act on 27th March, 1957. The present appeal has been filed by Indumati and others. The predecessor-in-interest of Indumati and others is the transferees from Renuka Debi who purchased 1/3rd share in the property in the auction sale as hereinbefore stated. The United Bank of India preferred a cross-objection. Tarun Kumar Mukherjee also preferred a cross-objection in connection with the appeal filed by Indumati and others. It may be mentioned that a trust deed was executed on 11th November, 1951 by Ramdas, Bamandas and Jagannath Mukherjee and the object of the trust was repayment of the ancestral and joint debts of the executant's incurred for meeting the expenses of marriages of their daughters and of their own maintenance. It has been further provided that the ancestral and joint debts were the mortgage debts due to the United Bank of India and also to the Roys of Bhagyakul. It was further provided in the said trust deed that any of the executant's can revoke the trust and can claim for himself l/3rd share of the property covered by the trust deed.
(3.) The learned judge hearing the reference under section 30 came to a finding that the trust deed is not binding on the claimant and there was no cross-objection by the executant's of the trust or by the trustees. We must, therefore, confirm the findings that the trust deed created on 11th November, 1951 is not binding on the creditor who had laid claim on the compensation money. So far as the United Bank of Indias claim is concerned it appears that the United Bank of India is entitled to have their mortgaged decree satisfied out of the compensation money. In so far as the mortgage decree of the United Bank of India is concerned, none of the claimants did raise any objection to it. The cress-objection filed in this court by the United Bank of India is in respect of payment of interest only. We are however not inclined to allow the cross-objection of the United Bank of India on that score. We, therefore, dismiss the cross-objection filed by the United Bank of India. In so far as the United Bank of India is concerned, the United Bank of India has a money claim against Ramdas alone on a hand-note. The point for decision, therefore, in this case is whether the appellant has the first priority over the other claimants in view of the attachment and purchase of the acquired property in auction on 13th August, 1955 which was confirmed on 17th August, 1957. It is stated that the property was in the meantime acquired under Land Acquisition Act and the possession of the same was taken on 27th March, 1957 after the award under section 11 of the Land Acquisition Act has been made and secondly whether by her purchase-Renuka got right, title and interest in respect of the 1/3rd share of the property which Ramdas Mukherjee held. The Roys of Bhagyakul attached the property in question on 13th January, 1952 after the acquisition has been made and the delivery of possession of the property was taken by the Land Acquisition Collector. Roys of Bhagyakul proceeded with the execution case and in execution of their decree the Roys of Bhagyakul auction purchased the right, title and interest of the judgment-debtors for Rs. 85,200/- on 15th April, 1957. The said sale was confirmed on 11th July, 1960. Tarun Kumar Mukherjee got a decree for Rs. 34,400/- and the money execution case was filed, being Money Execution Case No. 2 of 1958 and attached the compensation money in the said execution case. Thirdly, the question arises again whether the Roys of Bhagyakuls decree in so far as Rs. 85,200/- is concerned which was put into execution and the purchase of the right, title and interest of the judgment-debtor should be deemed to be satisfied and fourthly, whether T. K. Mukherjee is entitled to have his dues under the decree satisfied out of the compensation money and lastly whether the United Bank of India is entitled to have its dues satisfied out of the compensation money in respect of a claim based on a hand-note.;