A reservation of a subordinate interest in a property by the vendor in a 'kobala' is not repugnant to the transfer of the proprietary interest to the vendee, and is valid and operative.

( 1 ) THIS is an appeal by the defendant and it arises out of a suit instituted by one Ram Rakhal Ghosh as 'sebait' of three Deities for a declaration that the two items of properties described in schedules Ka and Kha of the plaint are 'debottar' properties and are not liable to be attached or sold in execution of a personal decree against the above 'sebait'.

( 2 ) THE Trial Court decreed the plaintiff's suit in so far as it related to the property of Kha schedule of the plaint, but dismissed the claim in respect of the property of schedule Ka. The defendant has preferred this appeal from the above judgment and decree of the Trial Court. No cross objection has been filed by the plaintiffs in respect of the portion of the claim dismissed by the Trial Court.

( 3 ) THE facts which have given rise to the present suit are almost undisputed and the decision of the suit turns mainly on a question of law. The defendant appellant obtained a personal decree against Ram Rakhal Ghose, the 'sebait' of the respondent Deities in Title Suit No. 45 of 1935 of the third court of the Subordinate Judge of Alipur. The decree was put to execution, and the interest of Ram Rakhal Ghose in a property described in Schelule Kha of the plaint was attached. This property goes by the name of Barabagan and it comprises a homestead with a 'pucca' building, a tank and adjoining lands. A claim case which was registered as claim case No. 43 of 1946 was filed on behalf of the Deities, but it was disallowed on 20-12-1947. Upon it the present title suit was instituted on behalf of the Deities according to the provisions of Order 21, Rule 63, Civil P. C.

( 4 ) THE contention of the defendant appellant in the Trial Court was that the plaintiffs Deities and their 'sebait' Ram Rakhal Ghose held two separate and distinct interests in the property in question, and what was attached in execution of the decree against the 'sebait' was not the superior interest of the Deities but a subordinate leasehold interest, which Ram Rakhal Ghose held under the Deities. This contention of the appellant was negatived in the Trial Court on the ground that this leasehold interest was not created by any registered document, and as such it had no existence in the eye of law which might make it liable to attachment or sale. This finding of the Trial Court is, however, a result of confusion between Ka schedule and Kha schedule properties of the plaint. The existence of a subordinate leasehold interest of Ram Rakhal Ghose under the Deities was also a matter for consideration with regard to toe Ka ' schedule property. Admittedly, there is no registered document evidencing such an interest of the 'sabait' under the Ka schedule property. The claim of the plaintiffs has been disallowed in respect of that property. In the absence of any cross objection on the part of the plaintiffs, it would not be necessary for the purpose of this appeal to find put on what exact ground or grounds this dismissal is based. But it is certain that so far as the Kha schedule property is concerned, there does exist a registered document purporting to show that Ram Rakhal Ghose took a subordinate Jama interest under the Deities, and so the Trial Court's finding that there was no registered document with regard to the alleged interest of Ram Rakhal Ghose in the Kha schedule property must be held to be incorrect on the face of it. The document in respect of the Kha schedule property is a registered deed of conveyance executed by Ram Rakhal Ghose in favour of the Deities on 30-7-1930 (exhibit 1 ).

( 5 ) I shall have to consider the nature, import and validity of the above 'kobala' in some detail. It will appear from this document as also from certain collateral evidence to which reference need not be made here, that some properties of the Deities were acquired by Government in land acquisition proceedings, and a sum of Rs. 1843/4/3 pies was awarded as compensation in favour of the 'debottar' e