1. The plaintiffs are the appellants in this case and, in the suit out of which this appeal arises, they sought to set aside a revenue sale which was held on 26th March 1936 or, in the alternative, they asked that they might obtain a conveyance from the auction purchasers in respect of the estate which was sold. The plaintiffs' case is to the effect that their predeeessor-in-interest executed a kabuliat in favour of Government in respect of this estate on 1st December 1862. According to the terms of that kabuliat the total amount of revenue payable to Government was Rs. 38-1-0 of which ES. 19-1-0 was the amount payable on 28th June each year, the balance of Es. 19 being payable on 12th January. Subsequently, separate accounts were opened in respect of the revenue payable namely, separate Account No. 1 representing the revenue amounting to Es. 19-1-0 separate Account No. 2 with Es. 3-3-0 as its revenue and another account for the residuary share in respect of which the revenue payable was Es. 15-13-0. In this appeal we are only concerned with the abovementioned residuary share.
2. The plaintiffs contend that they duly paid their share of the revenue, but their co-sharers failed to do so with the result that the residuary mahal was put up to sale on 26th March 1936 and was purchased by the principal defendants. They further contended that the mahal was sold before the latest day of payment fixed by the Board of Revenue and that they sustained considerable loss by reason of the sale. In any event, they maintained that the sale was illegal having regard to the fact that the prescribed notices under Sections 5, 6, 7 and 13 of Act 11 of 1859 were not served. The ease for the defendants was to the effect that the notices had been duly served and that the estate was properly sold in respect of arrears of revenue the latest day for the payment of which was 12th January 1936. The first Court decreed the plaintiffs' suit on the ground that the latest day for the payment of the arrears of revenue had not expired when the sale took place on 26th March 1936. The defendants appealed against this decision and the lower appellate Court reversed the judgment of the trial Court and dismissed the plaintiffs' suit. I The main point which seems to have been argued before the learned Additional Judge was whether 12th January 1936 was the latest, day for the payment of the revenue within the meaning of Section 3 of Act 11 of 1859 or was merely the contractual date for the payment of the revenue according to the alleged contract, dated 1st December 1862. The learned Judge held that 12th January was the latest day for the payment of the revenue under the rules of the Board of Revenue and he found that according to the Touzi Register, a certain amount of revenue remained due on 12th January 1936. He also found that the ledger and the notices showed that the latest day for the payment of these amounts was 12th January. The lower appellate Court therefore directed that the plaintiffs' suit should be dismissed. The learned advocate for the appellants in this case contends that his clients are entitled to succeed on the findings contained in the judgment of the learned Additional Judge and the sale which took place on 26th March 1936 was without jurisdiction because the latest day of payment, had not expired. He maintains that, according to the terms of the contract, dated 1st December 1862, 12th January merely represented the date on which an instalment of the revenue should have been paid by his clients, but that this instalment could not become an arrear of revenue until 1st February 1936, under Section 2 of Act 11 of 1859. That being the case, 28th March 1936 would be the latest date fixed by the Board of Revenue under the provisions of Section 3 of Act 11 of 1859. The extracts from the Touzi Register, which were exhibited in this case, show that the residuary mahal was sold in respect of arrears for the the third kist of 1936. Admittedly, the estate with which we are concerned was what is known as a two-kiat estate as it fell within the category of estates paying an annual revenue exceeding E3. 10 but not exceeding Rs. 50. Ip the ordinary course the relevant particulars relating to estates of this nature should be entered in Form No. 5, but apparently for the sake of convenience the form of the Touzi Register which was used in this particular case was Form No. i which relates to four-kist estates. In an estate in the latter category the kists end on the following dates, namely, 28th June, 28th September, 12th January and 28th March. The latest dates which were fixed by the Board of Revenue under Section 3 of Act 11 of 1859, in respect of the estate which the plaintiffs seek to recover were 12th January and 28th March and there seems to be no doubt that the learned Additional Judge was correct in finding that the arrears for which the estate was sold were arrears for the kist ending 12th ,January 1936.
3. Daring the course of the argument in this case in connection with this appeal, a good deal of discussion took place as to the meaning of the expression 'kist'. The learned advocate for the appellants argued that although 12th January 1936 should be taken as being the kist day, this can only have reference to the date mentioned in the original contract, dated 1st December 1862, and he was not prepared to accept the contention that the kist day which terminated the third kist as shown in the Towzi Register namely, 12th January 1936 could represent the latest date for the payment of arrears of revenue. ,Of course, in a case of this nature the onus lies very heavily on the plaintiffs to show that there were no arrears of revenue due from them in respect of which the estate might be legally sold and it is also for the plaintiffs to show that, if the Touzi Register indicates the existence of such arrears, this register has been incorrectly prepared. The practice of the revenue authorities with regard to this matter seems to be that the arrears of revenue in respect of any estate are calculated up to and including the last date of payment within the meaning of Section 3 of Act n of 1859. Section 4 of chap, 1 of the Bengal Touzi Manual is of some importance in this connexion. It is there stated that the word 'kist' is used in this Manual with three different but cognate meanings' (a) an instalment of revenue which is the meaning assigned to it in Section 2 of Act 11 of 1859, (b) the whole group of instalments which have the same latest date of payment and (o) the period ending with latest date of payment fixed under Section 3 of Act 11 of 1859 within which any instalment of revenue and arrears of that instalment must be paid.
4. Similarly, in discussing the effect of certain modifications of the revenue law, which were initiated by Act 12 of 1841 the following note appears on p. 4 of the Bengal Sale Law Manual, 1940:
As a result of this alteration in the law the payment of revenue by monthly instalments has been replaced in practice by a system of payment of arrears of revenue on the latest day of payment. By a not unnatural process of thought the term 'kist' is now ordinarily applied not to the monthly instalment but to-(a) the arrears of revenue which must be paid by a latest day of payment in order to save an estate from sale, or (b) the period between one latest day of payment and the next.
5. It seems, therefore, to follow that, when arrears of revenue are shown as being due in the Touzi Register from any estate in respect of any particular kist, this must be taken as showing, until the contrary is proved, that the last day of the kist is the latest day of payment for the arrears and that, if such arrears are not paid by that day, the estate will prima facie be liable to be brought to sale under the provisions of Section , Dinabandhu Chatterjee v. Ashutosh Chatterje the Judicial Committee of the Privy Council appear to have recognised the implication of the abovementioned practice of the Board of Revenue as regards the-maintenance of the Touzi Ledgers. Thus, their Lordships point out that
the expression 'kist' as explained in the Tauzi Manual issued by the Board of Eevenue, Bengal, means the period between one latest day for payment of arrears of revenue and the next, and is not used in the restricted meaning assigned to it in Section 2 of the Act. Thus, in the case of this estate, which paid revenue in two instalments the expression 'January Kist' means the period beginning on 29th September, and ending on 12th January, and the 'kist day' means the latest day of payment on which that period expires-now, 12th January 1930, as shown in the tauzi ledger, was the latest date for payment of that sum.'
6. In the case with which 'we are now dealing there is nothing to indicate that the touzi ledger had been wrongly prepared, nor have the plaintiffs succeeded in showing that there were no arrears of revenue in exis. tence on '12th January in respect of which their estate might be legally sold. On the contrary, there can be no doubt that, in this particular case, the latest day for the payment of arrears of revenue due from the estate was 12th January 1936 which was the last day of the third kist as shown in the touzi ledger. This being the case, we are of opinion that the learned Additional Judge took a correct view of the main point which was argued before him ijnd that, with regard to this matter,' he was correct in basing his decision on , Dinabandhu Chatterjee v. Ashutosh Chatterjee cited above. It appears however that one of the points taken by the plaintiffs in their plaint in the trial Court was that the requisite notices under S3. 5, 6, 7 and 13 of Act 11 of 1859 had not been served. This point appears to have been urged in the lower appellate Court, but the learned Judge has come to no finding with reference thereto. It follows therefore that it will be necessary to remand this case to the lower appellate Court for a decision on the question whether or not the sale of 26th March 1936 is vitiated by reason of the non-service of the abovementioned notices. If the learned Judge comes to a finding on this point in favour of the plaintiffs, the latter will be entitled to have the sale set aside.
7. If on the other hand, the learned Judge holds that the notices were in fact served, the plaintiffs' suit must be dismissed. Subject to these observations the ease is remanded to the lower appellate Court and the matter will be decided on the evidence which is already on the record. Costs will abide the final result.
Mohamad Akram, J.
8. I agree.