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Dasharathi Ghosh Vs. Khondkar Abdul Hannan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1928Cal68
AppellantDasharathi Ghosh
RespondentKhondkar Abdul Hannan
Cases ReferredHamid Hossein v. Mukdum Reza
Excerpt:
- .....case of balkishendas v. simpson [1893] 25 cal. 833. the plaintiffs in that suit prayed to have a revenue sale set aside upon the following facts : they were the proprietors in possession of a separate five-annas share of a village till the date of the sale, viz., the 5th september, 1891. down to 1884 the revenue payable for the said share was rs. 89 and odd. in the beginning of 1884 the board of revenue sanctioned a reduction of the revenue at rs. 82 and odd from rs. 89 and odd. the decision of the board was communicated to the collector by a letter in march, 1884, but the abatement was entered erroneously in the collector's books in respect of another estate which belonged to some different owners. the result of this mistake was that while the revenue paid yearly by the plaintiff was.....
Judgment:

Mukerji, J.

1. The plaintiff who was successful in the Court of first instance but whose suit has been dismissed by the lower appellate Court has preferred this second appeal.

2. The suit was for setting aside a revenue sale, held on the 27th June 1921, in respect of Towzi No. 1366/2 of the Hooghly Collectorate, named mehal Anantarampur in Pargana Balia, Thana Chanditala, District Hooghly. The towzi belonged to the plaintiff. The revenue payable for it is annas 14, and cesses annas 12 pies 9 only. The amount is due on the 28th March every year. The plaintiff sent the amount due for 1921 on the 18th March 1921, through the Post Office. It was received in the Collectorate on the 24th March 1921, but it was not credited in the proper register as in the money-order the number of the towzi was given as 66 and the name of the thana as Jangipara. The Collector's Office on receipt of the money noted on the acknowledgment that there was a discrepancy and so the money was kept in deposit in the Collectorate, and not credited in the accounts of the plaintiff's estate. This receipt came back to the plaintiff on the 3rd April 1921. The plaintiff's case was that he never cared to look into the receipt and only saw it after he had heard of the sale. The plaintiff heard about the sale after the time for preferring an appeal to the Commissionor was over. Hence he filed this suit.

3. The Subordinate Judge decreed the suit but that decree has been reversed, and the suit dismissed by the District Judge. The Subordinate Judge held that the sale was premature. The District Judge has held otherwise and has given very good reasons for his view. This view has not been seriously challenged before us and, in my opinion, rightly so.

4. The substantial question that has been argued before us is whether the estate was in arrears or not. The Subordinate Judge took the view that as the plaintiff had one revenue paying estate, viz., Anantarampur, the mis-description in the money-order could easily have been corrected and the towzi for which the money was meant could have been found out easily if the clerks in the Collectorate had taken some trouble. The District Judge on appeal expressed his view in these words:

Had the plaintiff oared to look into the receipt he would have learnt that the revenue was not credited in the proper register in his name and could have taken proper steps in the matter. It is admitted that he gave the wrong description in the money-order. There is no doubt that the plaintiff was to blame for all this. It was not the duty of the Collectorate clerk to find out the correct number. The fact that the money was not credited was notified in duo course to the plaintiff. In these circumstances I hold that the estate was in arrears.

5. The idea underlying the decision of the learned District Judge is that it is the last word on the question as to whether the estate is in arrears or not, and unless the amount received by him has been credited in favour of the estate, the estate is to be treated as being in arrears. The question, however, is not a mere matter of form but of substance - a legal position to be inferred from all the circumstances rather than a fact to be determined by a mere reference to the entries in the register as relating to the particular estate.

6. At the outset it would be convenient to deal with an argument that has been advanced on behalf of the appellant that the case should be decided on the footing of the relations between a creditor and his debtor. The question whether the law regulating those relations does not apply to the realization of the land revenue arose in this Court in the case of Ganga Bishun Singh v. Mahomed Jan [1906] 33 Cal. 1193. That was a case where the question arose in this form; whether, where payment of revenue was made with the express intimation that the payment was to be applied to the discharge of the revenue due for a particular instalment and it was received and acknowledged on that account, it was within the competency of the Collector, without the assent of the payer to appropriate the amount in discharge of an earlier instalment that was in arrears. This Court while holding in the affirmative observed as follows:

The Sale Law under Act 11 of 1859 is com plete by itself and we are of opinion that the relation between the Government and the holders of estates liable to pay revenue under the Act stands on an entirely different footing from that on which the relation between the creditors and debtors is based, and that arrears of Government revenue are not a debt within the meaning of Section 59, Contract Act.

7. On appeal the Judicial Committee reversed this decision and answered the question in the negative and observed as follows:

Much was said in the argument about the bearing upon the present case of certain provisions of the Contract Act, relating to the appropriation of payments. Those enactments might perhaps have had a bearing upon the case, if the parties had not by their own actions placed the matter beyond doubt. The money in question in the present case was expressly paid to satisfy the January kist, and it was received and acknowledged on that account. It requires no statutory provisions to show that when money has been so paid and received and appropriated, it is not in the power of one of the parties to the transaction, without the assent of the other, to vary the effect of the transaction by altering the appropriation in which both originally concurred.

8. The question of the applicability of the law relating to creditor and debtor arose again in the meantime in the case of Jogendra Mohan Sen v. Uma Nath Guha [1908] 35 Cal. 636. That was a case where there was no appropriation by consent and the question arose whether the provisions of Sections 59 to 61, Contract Act, would apply. It was held that there being nothing specific on the subject in Act 11 of 1859, the general law, which is practically embodied in Sections 59 to 61, Contract Act, would apply.

9. If the general law applies, what is the position? A valid tender on a contract of debt is as much a performance and discharge of a debtor's duty as an actual payment. The amount having been received by the Collector and not appropriated to the payment of the arrear that was due in respect of the appellant's estate, it cannot be said that the appellant was in a worse position than a person who has made a tender in respect of the debt due. The requisites of a valid tender were all complied with in the present case except only one, namely that the debtor must declare upon what account the tender is made. In Harris' Law of Tender, p. 19, it is said:

But it would, notwithstanding, always be for the debtor the wiser course, even where there exists but the single recoverable debt, to indicate to the creditor, at the time of the tender, the identity of the debt, in respect of which the tender is made. For, although the words of Lord Ellenborough that a payment of the exact amount of one of several debts would be irrefragable evidence to show that the payment was intended for that debt per Lord Ellenborough in Marryatts v. White [1817] 2 Stark 101; see also Mayfield v. Wadsley [1824] 3 B. & C. 357 would, no doubt, apply with a force, if possible still more conclusive, where, there existed but one recoverable debt, still the general commercial transactions of the creditor may be on a scale so extensive, so as to prevent an instant appreciation by him, of the circumstances attending the particular debt in question, and it would probably save misunderstanding and perhaps not a little trouble and expense thereafter, if the debtor at the time identified the debt in respect of which the tender is made.

10. In a case where a mistake is made at the time of the tender as to the number of the towzi and the name of the thana, the position is somewhat different from that of a debtor making a payment when he has only one debt due and is rather analogous to a case where several debts: are due and no declaration has been made upon what account the tender is made or perhaps worse still because the Collector would not be justified in going by the name of the mahal any more than the towzi number, leaving aside the further complication that arises by reason of the name of the thana being wrong. The general law is as put by Knight Bruce, L.J., in the case of Nash v. Hodgson [1855] 25 L.J. Ch. 186.

If a man sends money to another and that other receives it, the first point is: what was the intention with which it was sent ; and if that cannot be ascertained by direct proof, it must begot at by circumstantial evidence : and whatever is the intention that must prevail, unless only the other elects to return the money.

11. The creditor cannot appropriate in opposition to the debtor's expressed intention. The right of appropriation of the tender in the first instance is in the debtor alone. Where, however, the debtor has neither declared his intention regarding the appropriation, and where the circumstances surrounding the transaction, betray no indication of such intention, the right passes to the creditor but it does only on the failure of the debtor to exercise his prior right. Where debts exist and tenders have been made, but the transaction between the debtor and the creditor presents a prospect sterile of any indication from which it can voraciously predicate the intention of either of them, the law asserts an exclusive jurisdiction over the entire transaction and with that lofty scorn of heteronomy which always distinguishes its unfettered operations, proceeds to appropriate the tenders in accordance with those dictates of elevated reason which in the jealous record of leading cases, compel the proud concurrence of contemporary and the sacred submission of succeeding jurists. (Harris on the Law of Tender, p. 33). These general principles, however, can only be resorted to where there is no provision in the statute itself which may be applicable to the case and nothing which would militate against their application. Where the money is in the hands of the Collector and the remitter has by his own act created a position which precludes the Collector from crediting the money in the accounts of any particular estate, the case attracts the operation of the statute itself, the relevant provision being that contained in Section 8, Act 11 of 1859. This section or rather the latter part of it which is directly applicable will be presently considered.

12. Before doing so, however, it would be convenient to dispose of another question that has arisen, viz., whether there was any duty cist upon the clerks of the Collector to endeavour to find out the correct estate for which the remittance was meant. The Subordinate Judge says:

Under the circumstances, although, the plaintiff was in fault the clerk in question could detect it if he had taken some trouble.

13. The District Judge holds it was not the duty of the Collector's clerk to find out the correct number. In my opinion neither view is reasonable. So long as the declaration of the intention of the remitter as contained in the money-order coupon stood with the wrong number of the towzi and wrong name of the thana, it would be idle to think of being sure as to whether it was Mehal Anantarampur that was meant or any other mehal. Just before the sale, however, when possibly a few towziz were in arrears it was perhaps not difficult with a little effort to find out the real intention of the remitter. If the clerks of the Collectorate did not make a reasonable effort after kist day had expired to find out what the remittance was meant for they failed in their duty but the question we have to consider is not whether the sale need not have been made, but whether it was invalid or void by reason of its having been made contrary to the provisions of the Act.

14. Turning now to the latter part of Section 8, Act 11 of 1859 it runs thus:

Nor shall the plea that money belonging to the defaulter, and sufficient to pay the arrear of revenue due, was in the Collector's hand bar or render void or voidable a sale under this Act, unless such money stands in the defaulter's name alone and without dispute, and unless, after application in due time made by the defaulter, or after the written agreement provided for in Section 15 of this Act, the Collector shall have neglected, or refused on insufficient grounds, to transfer it in payment of the arrear of revenue due.

15. This section was considered by the Judicial Committee in the case of Balkishendas v. Simpson [1893] 25 Cal. 833. The plaintiffs in that suit prayed to have a revenue sale set aside upon the following facts : They were the proprietors in possession of a separate five-annas share of a village till the date of the sale, viz., the 5th September, 1891. Down to 1884 the revenue payable for the said share was Rs. 89 and odd. In the beginning of 1884 the Board of Revenue sanctioned a reduction of the revenue at Rs. 82 and odd from Rs. 89 and odd. The decision of the Board was communicated to the Collector by a letter in March, 1884, but the abatement was entered erroneously in the Collector's books in respect of another estate which belonged to some different owners. The result of this mistake was that while the revenue paid yearly by the plaintiff was duly credited in the Collector's books as it was paid, the plaintiffs were wrongly debited every year with Rs. 89 and odd instead of Rs. 82 and odd on account of the revenue payable by their estate. In consequence of this error on the debit side of the account, the books showed in March 1891, at the end of the revenue year 1890-91, the revenue of the plaintiff's estate as being in arrears; whereas if the debts had been rightly 'made the books would have shown a balance of Rs. 44-15-3 at the plaintiff's credit. In that case their Lordships explained the latter part of Section 8 in these words:

It is enacted that the Collector's possession of the money belonging to the defaulter, shall afford no answer to the default, unless the money stood in the defaulter's name alone and without dispute, or the Collector has failed, after application by the defaulter, to impute his money towards payment of the revenue. The enactment has no application, except there be (1) default in the payment of the revenue, and (2) possession by the Collector of money of the defaulter not indisputably placed to his credit, But the appellants were not in default. All moneys paid by them have been correctly credited; and their alleged default, which is a pure fiction, is based upon erroneous debit entries to which they were not parties.

16. From these observations two proposi-sitions clearly emerge : first, that possession by the Collector of money belonging to the defaulter, not indisputably placed to the credit of a particular estate cannot save the estate from being sold : second, that in the event of the money received by the Collector being in his hands but standing not in the defaulter's name alone or not without dispute and on the defaulter having applied for such credit, if the Collector neglects or refuses to impute the money towards the payment of the revenue, the estate cannot be sold. As regards the first of these propositions so long as the number of the towzi and the name of the thana were wrongly stated, the intention of the remitter of the money was not clear to the Collector and it is only reasonable to hold that the money was not indisputably placed in the hands of the Collector for credit in respect of the appellant's estate. The Collector may very well have hesitated to credit it in respect of one estate rather than another, lest he might act contrary to the intention of the remitter. Here then the second proposition comes into operation and for its application it is necessary to give the remitter an opportunity of making an application for credit of the money for the revenue of the estate for which it was meant. To give him such an opportunity rules have from time to time been framed and it is the violation of these rules which deprives the remitter of an opportunity to have the money which is in the hands of the Collector imputed towards the payment of the revenue of the estate for which it was meant.

17. In the case of Hamid Hossein v. Mukhdum Raza [1905] 32 Cal. 229 there was infraction of Rule 29 of the Land Revenue Rules then in force and this deprived the remitter of an opportunity to rectify the mistake that he had made as regards the number of the towzi and the name of the proprietor. To hold the sale of an estate for its arrears of revenue, the proprietor whereof had been deprived of a chance of correcting the mistake by reason of the non-compliance of the rule aforesaid, was held to be without jurisdiction, and the sale was accordingly set aside. In the present case the clerk of the Collectorate noted in the money-order receipt that there was a discrepancy and so the money was kept in deposit in the Collectorate. The judgment of the District Judge states that the receipt reached the plaintiff on the 3rd April, 1921. Probably that was the date of the postal seal which the receipt bears. The appellant's case is that the receipt was in his house and that he saw the receipt after he had heard about the sale. The District Judge has believed this case of the appellant and has blamed him for his negligence. The point is, had the appellant notice that his remittance had not been credited because there was a discrepancy, for on this depends the question whether he had opportunity to rectify the discrepancy. To provide for this, very salutary rules have been framed and if these rules are strictly followed, the remitter will always have such notice.

18. Rule 102, para. 2, of the Rules of the Bengal Touzi Manual, 1918, runs in these words:

If owing to omissions or errors in the particular of remittance there is any uncertainty as to whether a remittance can he correctly credited according to the intentions of the remitter, a note should be made across the acknowledgment in red ink, stating how the remittance has been credited or what particulars are required, and in the latter case the remitter should be asked to send the required information immediately by letter....

19. Very stringent rules follow as regards the treatment of acknowledgments with red ink note. Rule 109 enjoins how the acknowledgments are to be distributed to postmen for delivery. Rule 110 says:

The postman or village postman will obtain the remitter's signature or mark when delivering each acknowledgment in the postman's book or the village postman's register.

20. Then follow some rules as regards undelivered acknowledgments. Rule 114 is a very stringent rule attaching responsibility to the Post Office for punctual and free delivery of acknowledgments. Rule 115 is very important and runs in these words:

Remitters of revenue money-orders should be advised to examine carefully their acknowledgments for the money-orders in case there should be any red ink note by the Collectorate calling for further particulars or indicating doubt as to whether a remittance has been correctly credited according to the intentions of the remitter.

21. These rules, if worked properly, will place the question of notice beyond the range of all possible doubts in any particular case. There is nothing to show and indeed it is not suggested that these rules, especially Rules 110 and 115, have been complied with in the present case and, on the other hand, the ignorance of the appellant as regards the existence of the acknowledgment or its contents till after the sale was over has been be lieved by the District. Judge. What is contended is that the appellant was negligent but it cannot be said that there, is any duty cast upon a remitter to be on the look out for the return of he acknowledgment or for any endorsement that may happen to be made therein, unless he is warned to do so. The principle of the decision in the case of Hamid Hossein v. Mukdum Reza [1905] 32 Cal. 229, therefore, applies to this case.

22. In my judgment the sale must, in the circumstances, be held to have been made contrary to the provisions of the Act and must be annulled. The appeal is allowed, the decision of the District Judge is reversed and that of the Subordinate Judge restored with costs in this Court and of the Court of appeal below.

Cuming, J.

23. I agree.


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