1. This appeal is by the plaintiffs. They were proprietors of a 2 annas 15 gandas share in a certain estate in the district of Dacca. They opened a separate account. There were subsequent partition proceedings as a result of which their separate account was formed into a new estate which was given the number 16751 on the roll of the Dacca Collectorate. Revenue was fixed at Rs. 15-10-6 to be payable in two instalments, Rs. 10 in January and the balance in March. It may be noted that this revenue is greater than that attached to their previous separate account. The plaintiffs went on paying revenue as before. Their case is that they did not know that the partition had been given effect to and a new estate was created. It is difficult to see what object they could have had in behaving in this way if they really knew of it and for my part I should have no difficulty in accepting their explanation. Be that as it may, the estate naturally fell into arrears and was brought to sale and purchased by the respondent. The plaintiffs then instituted the present suit in. order to get the sale set aside. They failed in both the Courts below and now appeal to this Court. The first ground urged in support of the appeal is the sale was without jurisdiction because it was premature. This point depends on the old troublesome question whether the January and March kists are the kist days under Section 2 or the latest days of payment under Section 3 of the Act. The learned Munsif relied upon the entries in the touzi register which go to show that the kist day referred to is the latest day of payment under Section 3. There is no other evidence in support of this case. It is not at all clear from the judgment of the learned Subordinate Judge in appeal on what exactly he relied in reaching his decision. However it cannot be disputed that the estimate of this evidence made by the learned Munsif was correct and there is no doubt that according to the entries in the touzi register these two days are the latest days of payment under Section 3. The question is whether the entries in the register are right or wrong.
2. On the other side the plaintiffs produced Ex. D which is a certified copy of the notification under Section 94, Estates Partition Act. With great respect to the learned Subordinate Judge it appears to me that he has misconceived the nature and the legal effect of this notice. Section 94 provides that the Collector is to deliver possession of the separate estates. He is to give notice to every proprietor informing him of the date from which separation will take place when he will be separately liable for the amount of: land revenue specified in the notice. The notice is also to call upon him to enter into, a separate engagement. Section 95 provides that from the date specified in the notice each separate estate will be borne on the revenue roll as a distinct estate separately liable for the amount of land revenue assessed upon it. The proprietor will be so liable whether he has entered into a separate engagement or not. In the present case the plaintiffs did not enter into an engagement. They are therefore liable for the separate revenue of the newly separated estate from the date specified in the notice. The present estate-is item 14 in the notice. The plaintiffs were informed that they would have to pay in accordance with the kistibandi attached1 thereto and were called upon to enter into an engagement. Those kists must from the very nature of the case be the kists referred to in Section 2.
3. Mr. Das has argued that it was possible to insert the latest day of payment under Section 3 instead of the kists under Section 2. It is really quite meaningless to insert the latest, days of payment under Section 3 into a kabuliat executed by the proprietor. The latest, day of payment has nothing to do with the proprietor and nothing to do with the Collector. It depends upon the Board of Revenue and may be altered from time to time. These kists in the notices under Section 94 are fixed and cannot be altered except by agreement. It may well be that when the j proceedings under Section 94 were being conducted the Revenue Officer might have had the latest day of payment in his mind. We are not concerned with that. We are only concerned with the legal effect of what was done. We have no doubt that the only possible interpretation of the notice under Section 94 is that these kists are the kists referred to under Section 2 of the Act. As the sale proceeded; upon the basis that these were not the kists under Section 2 but the latest day of payment under Section 3 the sale was premature and was without jurisdiction. It is therefore not necessary for us to consider whether the appeal should be remanded in order that the Court may determine whether any injury was caused to the plaintiffs by the irregularity in connexion with the notice under Section 6. The appeal is allowed. The decrees of the Courts below are set aside. The plaintiffs will be given a decree as prayed for with costs in all the Courts.
Latifur Rahman, J.
4. I agree.