JUDGMENT Ryves and Daniels, JJ.
1. Jhari Koeri, the plaintiff appellant in this case, is the auction-purchaser of a fixed-rate holding. The holding originally belonged to one Babu Lal and was inherited by his wife Musammat Chaurasi. Musammat Chaurasi was in possession of another holding, either a fixed-rate or occupancy holding, probably the latter, which she had also inherited from her husband. A decree for arrears of rent against this latter holding was obtained against her. Instead of taking ejectment proceedings under Sections 57(a) and 61 of the Tenancy Act, the landholder put to sale the fixed-rate holding now in dispute, which was already mortgaged to him, and it was purchased by the plaintiff under two sale certificates, dated the 21st of June, 1909, and the 24th of November, 1910. The plaintiff obtained possession of the holding. Musammat Chaurasi died about two years before the suit, and on her death the defendants, who are remote reversioners of Baba Lal, managed to get possession of the holding, thereby ousting the plaintiff. The defendants set up title to the holding on the strength of .having obtained a relinquishment from a son of one of the daughters of Babu Lal. As it appears that there were daughters of Babu Lal in existence who were nearer heirs, the defendants' title is not assisted by this relinquishment, an both courts have found that they have no title. The courts have differed as to whether the plaintiff is entitled to recover possession from them. The main point in dispute was whether the plaintiff purchased merely the life interest of Musammat Chaurasi. The trial court held that in either case the plaintiff's title was good against all the world except the immediate reversionary heirs, and the defendants having no title, the plaintiff was entitled to get back possession. The lower appellate court considered that as the decree for arrears of rent was passed against Musammat Chaurasi, the plaintiff's purchase could only be of her life interest. It further held that as the defendants were in possession, it did not matter whether they had a good title or not, unless the plaintiff could prove that lie purchased the entire interest in the holding. Being of opinion that the plaintiff's purchase was of Musammat Chaurasi's life interest only, the learned Judge allowed the appeal and dismissed the suit.
3. The question, therefore, for decision in this appeal is what was the nature of the interest which the plaintiff obtained by his auction-purchase in 1909-10 and whether he has a subsisting interest sufficient to entitle him to recover the property from the defendants who are in possession without any right whatever.
4. It was laid down by the Privy Council in the case of Jugul Kiskore v. Jotendro Mohun Tagore (1884) I.L.R. 10 Calc. 985 that whether the whole estate or only the right, title and interest of the widow passes on an execution sale against the widow depends on the nature of the suit. If the suit is a personal claim against the widow only, her interest passes, but if the suit is in respect of the family estate or upon a cause not merely personal against her then the whole inheritance passes by the execution sale. The decree in that particular case was for mesne profits. It is contended before us that a decree for arrears of rent must necessarily be personal, whether the holding was ancestral or not, and two cases are cited in support of the argument. The first is the decision in Jiban Krishna Roy v. Brojo Lal Sen (1903) I.L.R. 30 Calc. 550. The decision in that case was that in that particular case a sale in execution of a decree for arrears of rent passed against a Hindu daughter passed only her interest, but the decision was based on the circumstances of the case and the provisions of Section 64 of the Bengal Tenancy Act and is no authority for the proposition that a decree for arrears of rent must necessarily in all cases be treated as a personal liability. The second case is a decision of the Calcutta High Court in Kristo Gobind Majumdar v. Hem Chandar Chowdhry (1889) I.L.R. 16 Calc. 511, which laid down that a decree for arrears of rent against a daughter in possession was a personal decree, in execution of which only her life interest could be sold. No reasons are given for the decision. The Court considered the case concluded by the Privy Council ruling in Baijun Doobey v. Brij Bhookun Lall Awusti (1875) I.L.R. 1 Calc. 133.
5. An examination of this ruling does not support the conclusion which the learned Judges drew from it. The case was decided on the ground that the sale which was held did not purport to be anything more than of the widow's interest, and the earlier cases cited by their Lordships in their judgment sufficiently show that it is possible for a sale under a rent decree against a widow to pass the entire estate.
6. There has been no finding by the courts below as to whether the holding in respect of which the decree was obtained was a fixed-rate or an occupancy holding. In either case the zamindar might, under Section 57(a) of the Tenancy Act, have enforced it by proceedings in ejectment, and had he done so, the entire tenure would have been lost to the family. The difference between the two is that if the holding was an occupancy holding, the reversioners could not, in any case, have succeeded to it on Musammat Chaurasi's death unless they shared in the cultivation during her life-time. It appears to us, however, that it is unnecessary to enter into this question for this reason that it is clear from the record that what purported to be sold under the decree was the entire tenure. If it be assumed that the decretal debt was not of a nature to support a sale of the entire interest, the purchasers obtained a title voidable at the instance of the reversioners on the widow's death. Until challenged by them, it is a good title and cannot be treated as a nullity by any trespasser who has succeeded in getting possession of the property. On this point we agree with the learned trial Judge.
7. If authority is necessary we may refer to two recent decisions of the Bombay and Bihar High Courts respectively, Sitaram v. Khandu (1920) I.L.R. 45 BGom. 105 and Maharaja Kesho Prasad Singh v. Chandrika Prasad Singh (1922) I.L.R. 2 Patna 217. In this respect an execution sale against a widow which purports to pass the entire estate stands on the same footing as a voluntary alienation by her. In this view we set aside the decree of the court below and restore that of the trial court with costs in all courts.