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Sree Rajah Tyada Poosapati Rudra and ors. Vs. the Maharaja of Jeypore - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in14Ind.Cas.286
AppellantSree Rajah Tyada Poosapati Rudra and ors.
RespondentThe Maharaja of Jeypore
Cases ReferredKumar Rameshar Malia v. Ram Tarah Hazra
Excerpt:
.....- ganjam and vizagapatam agency rules--order by agent dismissing application for rectification of sale certificate--appeal to government--mistake in boundaries--canons of construction. - - it is, however, unnecessary to con-eider whether the particular rules of the civil procedure code having a bearing on the point should be applied to this case or not, as it is perfectly clear, in our opinion, that the application to the agent to the governor should not be regarded as one for review of mr. the mortgaged property was practically the whole of the zeroiti villages of the zemindari of pachipenta as well as the imams belonging to the zemindar and the forests of pachipenta zemindari 73 villages are enumerated in the decree and schedule gives the boundaries 'for the whole of pachipenta..........the subject-matter of the petition to the government related to an alleged serious error in the sale certificate granted by the agent to the purchaser in the auction-sale held by the court, namely, the maharajah of jeypore. briefly, the complaint was that the certificate stated that the 69 villages together with the hamlets forming a portion of them were included in the sale while in fact the hamlets were not sold but only the 69 main villages excluding the hamlets. the purchaser contended that the hamlets were in reality brought to sale by the court, the agent to the governor dismissed the application for the rectification of the alleged mistake and the only question for our decision is whether, as a matter of fact, there is any real mistake in the sale certificate.2. before dealing.....
Judgment:
ORDER

1. This case arises out of a petition to the Government of Madras which was referred to this Court under Rule 31 of the Ganjam and Vizagapatam Rules under Act XXCV of 1839 for the administration of justice and collection of revenue in Ganjam and Vizagapatam, The Maharajah of Bobbin obtained a mortgage decree against the zemindar of Pachipenta for a sum of about Rs. 2,75,000 which directed the sale of the mortgaged property in case of default of payment within the time fixed in the decree. The mortgaged property comprised 73 villages in all, 69 of them being situated in the Agency Tracts of Vizagapatam subject to the jurisdiction of the Collector and Agent to the Governor and the remaining 4 in the Non-Agency portion of the Vizagapatam district and subject to the jurisdiction of the District Court. The defendants in the suit having committed default in the payment of the decree amount, the decree-holder took steps to bring the mortgaged villages to sale. The four villages not comprised in the Agency tracts were first brought to sale by the District Court of Vizagapatam and the 69 villages situated in the Agency were subsequently brought to sale by the Agent to the Governor. The subject-matter of the petition to the Government related to an alleged serious error in the sale certificate granted by the Agent to the purchaser in the auction-sale held by the Court, namely, the Maharajah of Jeypore. Briefly, the complaint was that the certificate stated that the 69 villages together with the hamlets forming a portion of them were included in the sale while in fact the hamlets were not sold but only the 69 main villages excluding the hamlets. The purchaser contended that the hamlets were in reality brought to sale by the Court, The Agent to the Governor dismissed the application for the rectification of the alleged mistake and the only question for our decision is whether, as a matter of fact, there is any real mistake in the sale certificate.

2. Before dealing with the merits, we may dispose of a preliminary objection raised by Mr. B.N. Sarma, the learned Vakil for the respondent. He contends that no petition lay to the Government against the order of the Agent to the Governor, because, he says, the! Agent's order must be treated as one refusing to review an order passed by his predecessor in the office, Mr. Turing, on 2nd May 1908, that the application for the rectification which, he says, must be treated as an application for review of that order, was put in long after the three months allowed for review applications, that Mr. Parsons who disposed of the application had no jurisdiction at all to review Mr. Turing's order and that no petition would lie to the Government against Mr. Parson's order dismissing the petition for review. It is clear that the whole of this argument proceeds on the application to this case of the rules contained in the Civil Procedure Code which is admittedly inapplicable to the Agency tracts. It is, however, unnecessary to con-eider whether the particular rules of the Civil Procedure Code having a bearing on the point should be applied to this case or not, as it is perfectly clear, in our opinion, that the application to the Agent to the Governor should not be regarded as one for review of Mr. Turing's order. As a matter of fact, Mr. Turing passed no order on 2nd May 1908 deciding what was comprised in the sale held by the Court and what the terms of the sale certificate should be. On that day, Mr. Turing dismissed an application of the judgment debtors requesting that the sale should be set aside on the ground of certain irregularities. It appears that on the same day, the Ministerial Officer of the Court prepared a sale certificate as the application for setting aside the sale had been dismissed. On the draft certificate, we find an office note 'for approval.' As the certificate was subsequently issued we may take it that the Agent approved the draft. It is this fact that is relied on as a judicial order determining what were the exact properties sold by the Court and what the contents of the certificate should be.

3. It is absolutely impossible to uphold this contention. It is the duty of the Court, when a sale has been confirmed, to grant a sale: certificate to the purchaser. But in merely drawing up a certificate to be given to the purchaser, there is no judicial order passed binding on any party. If a question be raised as to what the certificate should contain on account of a dispute between the parties and the question is adjudicated upon by the Court, the order passed by the Court s would, of course, be a judicial order. There was no such order in this case and the petition to rectify the mistake in the sale certificate cannot, therefore, be treated as one for the review of any judicial order. The order dismissing the petition for rectification was, of course, a judicial order. Under Clauses 31 of the Agency Rule, 'all petitions against the proceedings of the Agent must, in the first instance, be submitted to the Government.' It has been held by this Court in Sri Sri Vikramadeo Maharajulum Garu v. Sri Neladevi Pattamadhadevi Garu 26 M. 266 that a petition would lie to the Government to revise orders of the Government Agent in execution proceedings under Rule 31 although that Section does not in terms lay down that a petition would lie against the Agent's orders on petitions. See also Maharaja of Jeypore v. Neladevi 13 M.L.J. 151. We overrule the preliminary objection.

4. Proceeding now to deal with the merits of the petitionm we have no hesitation in holding that the Agent intended and purported to sell the the whole of each of the 69 villages in question including the hamlets attached to each. It is admitted that the decree for sale did comprise the hamlets. The mortgaged property was practically the whole of the zeroiti villages of the zemindari of Pachipenta as well as the imams belonging to the zemindar and the forests of Pachipenta zemindari 73 villages are enumerated in the decree and schedule gives the boundaries 'for the whole of Pachipenta zemindari.' The entire argument for the petitioner is based on the fact that the boundaries given in the application for the execution of the decree for sale do not comprise the hamlets attached to each of the villages and that the latter are excluded from the sale by the boundaries. It is not pretended that the decree-holder intended to bring only a portion of the morgtgaged properties to sale. The argument evidently is that, as a fact, the boundaries do not include the hamlets and that the auction-purchaser is bound by the actual boundaries mentioned in the application which were also inserted in the proclamation. It may at once be stated that the order for sale stated that the villages mentioned in the execution application should be sold. The proclamation of sale copied the boundaries given in the execution application as also did the sale list. It is, therefore, argued that it must conclusively be taken that nothing more than what was comprised in the boundaries was intended to be sold. No inquiry has been held by the lower Court as to whether the contention that the boundaries actually mentioned would exclude the hamlets is well founded or not. If the petitioner's contention that the boundaries given for each of the villages must be regarded as conclusively determining what was sold, it would, of course, be necessary to direct an inquiry to determine whether they comprised the hamlets or not. But, in the view we take of the case, it is unnecessary to do so. It is admitted that the extent, given in the application for execution and in the subsequent proceedings, of the villages to be sold, the income of each of those villages and the peishkwsh or Government assessment payable on them, all follow the description in the decree which admittedly included the hamlets The decree-holder requested the Court to sell the villages as a single lot. See his petition dated 15th July 1907. The debtor requested that the villages should be sold separately. There was then no question that each village with its hamlets was to be sold. The decree-holder seems then to have been directed to state the boundaries of each of the villages. There evidently was some difficulty in doing so. The decree-holder put in a petition on the 16th October 1907 justifying the boundaries given by him. He said 'the boundaries given to the villages by the judgment-debtors and their men as contained in the registered muchilikas were given and they cannot question their correctness now. Further, they did not venture to give correct boundaries even.' He, at the same time, protested against the sale of the villages separately. It is quite clear from the above petition that the decree-holder, who presumably had no direct knowledge of the boundaries, gave the best description he could of them relying on the boundaries contained in documents taken by the judgment-debtor from his lessees in the course of his management of his estate. It is quite certain that what the decree-bolder intended to sell was the villages included in the decree. The whole zemindari consisted of 73 villages, 69 of which were to be sold by the Agent. This fact was well known to the parties to suit and there can be no doubt that intending purchasers understood that the villages well known by their names were to be sold as a whole. It is admitted that the hamlets are attached to and formed portions of the villages and we entertain no doubt that the hamlets were not excluded from the sale. The Court finally decided that the villages should not be sold separately. But apparently no change was made in the sale proclamation by omitting the boundaries of single villages and giving only a single set of boundaries for the whole zemindari as was done in the decree. The judgment-debtors in their petitions, dated 20th March 1908 and 2oth March 1903, admitted that the whole of the zemindari was being sold. The sale commenced on the 20th and was concluded on the 26th March 1908. In their petition of the 26th, they state that 'the present zemindari of Pachipenta more fully described in the proclamation of sale was advertised for sale on 20th March 1908.' In the petition of 20th March 1908, it is said 'that the whole of Agency portion of the Pachipenta Estate has been proclaimed to be put to auction on the 20th March 1908 in execution of the above decree.' There cannot be a shadow of doubt that the judgment-debtors fully understood that the hamlets were included in the sale and that their belated application for the rectification of the certificate was merely a desperate attempt to secure some portion of the zemindari for their family. We may note that in the sale proclamation published in the 'Madras Mail', it was distinctly stated that the whole of the zemindari was to be sold. The petitioners cannot now be permitted to assert that considerable portions of the villages were not brought to sale. We are unable to agree with Mr. K Srinivasa Aiyanger, the learned Vakil for the petitioners, that there is any hard and fast rule that the boundaries must be taken to be the sole determining factor in deciding what was intended to be sold. Where there is a conflict between the boundaries and measurements more importance would no doubt, be ordinarily attached to the boundaries. But this is only because parties generally pay more attention to the boundaries than to the measurements of property intended to be conveyed. The question in every case is, what was the intention in that case. Where the boundaries are indefinite the measurements assume more importance. In this case the important factor in the description is the name of the village. In forest tracts villages are known by well understood names and both the boundaries and measurements are often vague. The rules applicable for the determination of the identity of the property conveyed have been laid down in Lord v. Commissioners for the City of Sydney 12 Moore P.C. 473 : 33 L.T. 1 : 6 W.R. 267. The most important authorities on the question are collected in Durga Prasad Singh v. Rajendra Narain Bagchi 37 C. 293 : 10 C.L.J. 570 : 4 Ind. Cas. 713 by Doss, J. The learned Judge observes: The primary canon of interpretation of a deed or grant where there is a conflict between the description of the. boundaries of the land conveyed and the description of the quantity, unquestionably, is that the description of the boundaries, if it is precise and accurate, dominates the description of the quantity. See Llewellyn v. Earl of Jersey 11 M. and W. 183 : 12 L.J. Ex. 243 : 63 R.R. 569; Jack v. M'Intyre 12 Cl. and F. 151; Cowen v. Trufitt, Ld. (1898) 2 Ch. 551 : 67 L.J. Ch. 695 : 47 W.R. 29 : 79 L.T. 348 and (1899) 2 Ch. 309 : 68 L.J. Ch. 563 : 47 W.R. 63 : 81 L.T. 104 and M'lver v. Walker 4 Wheaton U.S. 444 : 4 Law. Ed. 611. On the other hand, there is a supplementary canon equally well established, though instances of its application are much less frequent than those of the other, that if the description of the boundaries is vague and uncertain, it yields to the description of the quantity: See Herrick v. Sixby L.R. 1 P.C. 436 : 4 Moore P.C. 349; Davis v. Shepherd (1866) L.R. 1 Ch. 410 : 35 L.J. Ch. 581 : 15 L.T. 122; Mellor v. Walmesley (1905) 2 Ch. 164 : 74 L.J. Ch. 475 : 53 W.R. 581 : 93 L.T. 574 : 21 T.L.R. 591; Home v. Struben (1902) A.C. 454 : 71 L.J. P.C. 88 : 78 L.T. 1

5. These two canons are in fact illustrations of, and may be summed up in, a more general principle that where there are two conflicting descriptions of the subject-matter of a grant, or two conflicting parts of the same description, that which is the more certain and stable and the least likely to have been mistaken or to have been inserted inadvertently, must prevail, if it sufficiently identifies the subject-matter. This, again, is not a rule of law and hence inflexible in its character, but a mere rule of construction, which serves as a safe and almost infallible guide in determining the intention of the parties which is the touchstone of true interpretation. Indeed, it is all controlling and predominates over all the elements of description of the subject-matter.' In the case before the learned Judge, both the boundaries arid quantity were precise and definite but there was a gross divergence between the quantity specified and the quantity found to be included within the definite boundaries. It was held that the intention in the particular case was to convey the quantity mentioned within the boundaries. See also Kumar Rameshar Malia v. Ram Tarah Hazra 14 C.W.N. 168 : 1 Ind. Cas. 650.

6. We have no doubt that every body is this case understood that the predominant factor of the description was the name of the village. As already stated, the extent, the Government assessment, the income, all referred to the whole village as mentioned in the decree. The division of the whole zemindari according to taluks and villages included in each taluk as described in the decree was also followed. It is also admitted that in the description of the forest income the whole zemindari was taken into account. It was argued that whatever might have been the intention, the description in the sale certificate must not be found in the sale proclamation, and that the question what was contained in the latter should be left over and should not be taken into account in determining the contents of the sale certificate. This was apparently the view taken by the District Judge of Vizagapatam who allowed the sale certificate to be rectified with regard to the 4 villages under the jurisdiction of his Court. We are unable to uphold this contention and we are unwilling, in a case where there can be no possible doubt of what was intended to be sold, to leave open a matter which is sure to be made an occasion for future disputes. We, therefore, confirm the order of the Agent and dismiss the petition with costs.


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