A lease is not an "alienation" within the meaning of Section 40 of the Bombay Agricultural Debtors Relief Act, 1947.

JUDGMENT - 1. This is an appeal by the original defendant No. 5 against the appellate judgment dated 31st December 1962 of the learned Assistant Judge, Jalgaon. Respondents 1-A to 1-D are the heirs and legal representatives of the original plaintiff. Respondent No. 4 is the heir and legal representative of the original defendent No. 3. Respondents Nos. 2.3 and 5 are respectively the defendants Nos. 1,2, and 4. They have not appeared.

2. On 8th May 1946 the plaintiff granted a lease of an areas admeasuring 115 feet x 125 feet out of survey No. 284/1 in Pachora. District Jalgaon, to the defendants 1 and 2 for constructing a cinema house thereon by lease deed Ex. 54. On 31st December 1948 defendants 1 and 2 assigned their leasehold rights to defendant No. 3 who constructed a cinema house on the said land. He gave the cinema running it. On 22nd November 1956 the defendant No. 3 assigned the leasehold rights to defendants Nos. 4 and 5. It appears, the defendants No. 3 had not paid rent to the plaintiff. Therefore in 1955 the plaintiff filed against the defendant No. 3 a suit for recovery of arrears of rent. The defendant NO. 3 thereafter paid up the said arrears.

3. On 9th June 1958 the plaintiff filed against the defendants Nos. 1 to 3 the suit from which the present appeal arises in the court of the learned Civil Judge. Junior Division, Chalisgaon, for recovery of possession of the suit land alleging that the lease Ex. 54 was invalid being in contravention of Section 40 of the Bombay Agricultural Debtors Relief Act, 28 of 1947 (hereinafter referred to as to B. A. D. R. Act). The plaintiff contended that the defendants Nos. 1 to 3 were therefore in unauthorised or illegal possession of the suit property and were liable to handover possession to him.

4. The defendants took several contentions, including one that the lease was not void. They also contended that the suit was barred by the law of limitation.

5. Defendants Nos. 4 and 5 were added as party defendants on 24th February 1959. They raised the same contentions as raised by defendants Nos 1 to 3. They further contended that in any case so far as they were concerned, the suit was time barred.

6. The trial court decided the above issues against the defendants and decreed the suit. The defendants Nos. 3 and 5 appealed to the District Court at Jalgaon. In the said appeal the appellants took inter alia the same contentions that they had taken in the trial court. The learned Assistant Judge who heard the appeal dismissed the same with costs. Against the said decision, the defendant No. 5 alone has filed the present appeal.

7. The first contention taken before me by Mr. Kowtow on behalf of the appellant is that Section 40 of the B. A. D. R. Act was enacted for the benefit of the creditor and not for the benefit of the debtor. The plaintiff was not a "creditor" but was a "debtor". The plaintiff was therefore not entitled to avoid the lease in respect of the suit land. He further contended that in any case the lease was created by the plaintiff and he could not take advantage of his own wrong.

Section 40 of the B. A. D. R. Act read as under:--

"Not withstanding any law or contract ........................................... no alienation of any property belonging to a debtor who is a party to any proceeding under this Act or an award registered under this Act, made by him before all his debts are discharged shall be valid, except with the previous sanction of the Court."

8. It is admitted by the parties that the plaintiff was on 8th May 1946 a debtor, that he was a party to a proceeding under the B. A. D. R. Act. and that all his debts were not discharged. It is also admitted that the lease was not created with the previous sanction of the Court. In such circumstances, Section 40 clearly lays down that the "alienation of any property" shall be invalid. The section does not say that such alienation shall be voidable at the instance of the creditor. If it had so said, there would have been subst

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