1. The appellant, having obtained a money decree against a taluhdar, who is now deceased and is represented by the respondents, presented a darkhast for its execution. Several villages, belonging to the taluhdar, were attached and the Court sent the darkhast to the Collector to be dealt with under Sections 320 to 325 of the Code of Civil Procedure of 1882, then in force. The Collector in his turn transferred the darkhast to the Talukdari Settlement Officer,, the reason for that being that the latter combined in himself, according to a rule having the force of law, the functions of Collector and Talukdari Settlement Officer for the purpose of execution of decrees against or in respect of talukdari lands. That Officer, acting under the sections in question, framed a scheme, whereby it was arranged that the appellant should be put in possession of one of the attached villages and allowed to enjoy the income of that village for seven years in satisfaction of the decree and that the other villages should be releasid from attachment. The appellant assented to the scheme and the Talukdari Settlement Officer, acting upon it, wrote to the Deputy Manager a letter (Exhibit 54), informing him of the scheme and asking him to put the appellant in possession of the village. At the same time the Talukdari Settlement Officer recorded an order and sent it to the Court which had passed the mone-ydecree. That order (see Exhibit 22) is as follows:
The qubulayat, given by the plaintiff to accept in Pulachut the income of Karsah-pura, for seven years in satisfaction of his darkhast No. 614 of 1899 and 552 of 1899, is put in the case; order is given to the Deputy Manager to carry it out accordingly. This darkhast is to be entered in the list of Japti Vahivat (management of attached estates) under Section 323, Civil Procedure Code and order is given to send its account every year and, therefore, this darkhast is taken out of the list of cases under inquiry and entered in the list of attached estates.
2. The scheme was made, the order was passed, and delivery of possession of the village was given to the appellant after the judgment-debtor had died and after the amendment of Section 31 of the Talukdari Act had come into force. That section runs as follows:
No incumbrance on a talulidar's estate, or on any portion thereof, made by the taluk-dar after this Act comes into force, shall be valid as to any time beyond such talukdar's natural life, unless such incumbrance is made with the previous written consent of the Talukdari Settlement Officer, or of some other officer appointed by the Governor-in-Council in this behalf (and after the death of a talukdar no proceeding for the attachment, sale or delivery of, or any other process affecting the possession or ownership of, a taluhdari estate, or any portion thereof, in execution of any decree obtained against such talukdar or his legal representative, except a decree obtained in respect of an in-cumbrance made with such consent as aforesaid, or made before this Act comes into force, shall be instituted or continued except with the like consent.)
3. It appears that the Taluhdari Settlement Officer was not aware of the latter portion of Section 31 when he settled the scheme, passed his order, and put the appellant in possession of the village. Accordingly, the Court was requested to dispose of the darkhast by holding that the appellant could not retain possession of the village under the scheme.
4. The lower Court has allowed the Talukdari Settlement Officer's objection to the darkhatst on the ground that there was no previous consent in writing of his such as is required by the last part of Section 31 of the Talukdari Act,
5. The Talukdari Settlement Officer's contention in the Court below was that he had never given any such consent as the section required, because all he had said and done had been not under that section but under Section 323 of the Code of Civil Procedure.
6. I am unable to accept this contention. All that Section 31 required was his previous consent in writing. That there was such consent is clear from Exhibit 5 and the Officer's order, quoted above. It may be that the Talukdari Settlement Officer was not aware of the amendment of Section 31 and so had not the remotest consciousness that he was acting in conformity with it when he settled the scheme and allowed the appellant to be put in possession of the village. But if a person, holding a certain office, is empowered by law in virtue of that office to give previous consent in writing to certain proceedings or acts as a condition precedent to their legality or validity, and the person as a matter of fact gives such consent, it cannot be the less a consent previously given in writing, merely because at the time of giving it he happened to be unaware of the law empowering him to consent, or, being aware of it, he thought he was consenting in virtue of another office which he held. His ignorance of the law giving him the power cannot make the consent not a consent and is no
7. legal ground or excuse for withdrawing it after he has once given it. As was said by Lord Ellenborough C. J. in Bilbie v. Lumley (1802) 2 East. 469: 'Every man must be taken to be cognisant of the law; otherwise there is no saying to what extent the excuse of ignorance might not be carried. It would be urged in almost every case.' As for. the plea that the consent was given by the Talukdari-Settlement Officer, not under Section 31 of the Talukdari Act but under Section 323 of the Code, it is answered by the rule of law that where a certain act requires the concurrence of an official person, there is a presumption in favour of its due execution on the ground of the legal maxim omnia proesum-untur rite et solemniter esse acta donee probetur in contrarium. In such cases, everything is presumed to be rightly and duly performed until the contrary is shown.' That presumption can indeed be rebutted by proof that certain forms required by law were not complied with. Here no form is prescribed by law. All that is urged is that the Talukdari Settlement Officer did not know of the law embodied in Section 31 of the Talukdari Act when he gave his consent to the scheme. We are, therefore, brought back to the plea of ignorance of law, which, as I have said is no excuse.
8. It is to be remarked that the powers under Section 323 of the Code of Civil Procedure, ' conferred on the Collector and those conferred-on the Talukdari Settlement Officer by Section 31 of the Talukdari Act are both enabling or discretionary and are not necessarily of a mutually contradictory character. Where the two offices are combined in one and the same person on grounds of public convenience or expediency, his action must be referred to the exercise of his discretionary powers under both sections, if it can be so referred. It is not that in respect of one office the action was without, and in respect of the other it was with jurisdiction.
9. If he had the discretionary jurisdiction as to the action in both capacities, the law will refer it to both of them and then the question is reduced simply to this-had he given previous consent in writing as required by Section 31 of the Talukdari Act? That section prescribes no' particular form for the consent. All it requires is that there must be (1) consent, (2) that it must be previous, and (3) that it must be. in writing. It is not disputed before us that these three conditions are satisfied by Exhibit 54 and Exhibit 22. As to the first of these conditions, all we have to see is that the person who gave the consent occupied at the time the office of Talukdari Settlement Officer and that he acted deliberately in the matter of the scheme and gave his sanction to it freely, because 'consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side,' that is, it must not be due to fraud or undue influence. (Story's Equity Jurisprudence, 2nd Edn., Section 22). The Talukdari Settlement Officer is shown by the evidence to have given his sanction to the scheme after fully considering the circumstances of the case. The argument that such consideration was bestowed by him on the scheme in his capacity as Collector ignores the fact that though he held two offices it was one mind which considered the scheme before consenting to it. And that consent was embodied in writing in Exhibit 54, the letter he wrote to his Deputy, asking him to give delivery of possession to the decree-holder; and in the order, forming part of Exhibit 22, sent to the Court with the darkhast. Both these were put in writing before delivery of possession to the decree-holder.
10. On these grounds, in my opinion, the decree appealed from must be reversed and the darkhast should be allowed to, con tinue. The appellant must have the costs both in this Court and the Court below from the respondents who are to bear their own.
11. By Bombay Act II of 1905, Section 31 of Bombay Act VI of 1888 was so amended that thereafter no proceeding for the attachment, sale or delivery of, or any other process affecting, the possession or ownership of a talukdari estate or any portion thereof in execution of a decree' could be instituted or continued without the previous written consent of the Talukdari Settlement Officer.
12. The decree-holder in these proceedings had several unexecuted decrees against a Talukdar of which applications for execution were pending. In the proceedings, on one of these applications an order was made for selling the estate of the Talukdar or a portion thereof and the proceedings were sent to the Collector under Section 320, Civil Procedure Code. It fell to the Talukdari Settlement Officer, who in certain cases is the Collector for execution purposes, to deal with the matter He entered into an arrangement with the decree-holder by which a scheme was made as permitted by Section 323, Civil. Procedure Code, under which the decree-holder was to have possession of one. Talukdari village for seven years in discharge of his decrees. Meantime two out of four applications for execution were to be withdrawn, and the remaining two, kept pending. The negotiations had begun before the amendment of Section 31, came into force; but the scheme was finally arranged, accepted and given effect to after the amendment. The question is whether the execution proceedings were continued with the previous, written consent of the Talukdari Settlement Officer as required by Section 31 of the Act. I think they were. The Talukdari Settlement Officer, undoubtedly, did consent to the continuance; that is plain from the letters he sent to the Court. It is equally plain that the consent was in writing and that it was previous to the delivery of possession to the decree-holder. The only argument of any importance against holding the previous written consent to be of the kind contemplated, by Section 31, is that it was not given for the purpose of Section 31 and was given in ignorance of or without regard to the provisions of that section and merely in pursuance pi execution proceedings which the Talukdari Settlement Officer was bound to conduct. I do not think that after the amendment of Section 31 he was bound to conduct them. It was open to him to refuse to consent to their continuance and to refer them back to the Court. I also do not think the evidence, establishes the contention of ignorance or that the consent was not given for the purpose of Section 31. The Talukdari Settlement; Officer of the time was not examined as a witness and there is no direct evidence on the matter. We are left to conjecture and I do not think the circumstances justify the conjecture urged by the respondent. Therefore, I concur in the order proposed.