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Kumar Narendra Nath Roy Vs. Midnapore Zamindary Co. Ltd. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1940Cal115
AppellantKumar Narendra Nath Roy
RespondentMidnapore Zamindary Co. Ltd.
Cases ReferredKhunnilal v. Gobind Krishen Narayan
- r.c. mitter, j.1. appeal no. 203 is in title suit no. 45 of 1936 of the court of the subordinate judge of nadia, a suit instituted by the plaintiff-appellant against the midnapore zemindary co. ltd., for recovery of khas possession of lands described in four schedules annexed to the plaint and for mesne profits. appeal no. 204 is in title suit no. 46 of 1936, a suit of a similar scope against manindra nath bose in respect of the lands described in the schedule annexed to the plaint. touzi no. 491 of the nadia collectorate, lot sadipore, belonged to a number of proprietors who had opened separate accounts under section 10, bengal land eevenue sales act (11 of 1859). at the material point of time there were fifteen such separate1 accounts. separate account no. 491/7 (which was formerly.....

R.C. Mitter, J.

1. Appeal No. 203 is in Title Suit No. 45 of 1936 of the Court of the Subordinate Judge of Nadia, a suit instituted by the plaintiff-appellant against the Midnapore Zemindary Co. Ltd., for recovery of khas possession of lands described in four schedules annexed to the plaint and for mesne profits. Appeal No. 204 is in Title Suit No. 46 of 1936, a suit of a similar scope against Manindra Nath Bose in respect of the lands described in the schedule annexed to the plaint. Touzi No. 491 of the Nadia Collectorate, Lot Sadipore, belonged to a number of proprietors who had opened separate accounts under Section 10, Bengal Land Eevenue Sales Act (11 of 1859). At the material point of time there were fifteen such separate1 accounts. Separate Account No. 491/7 (which was formerly numbered 491/5) belonged to one Bhupendra Nath Mustafi and separate account No. 491/13 stood in the name of Panchanan Mondal.

2. On 7th January 1927, Bhupendra borrowed Rs. 4000 from the plaintiff-appellants Narendra Nath Boy, and as security for the loan mortgaged his interest in the said zemindary which had then been recorded in. separate account No. 5. This separate account was at a later date changed to No. 7 and hereafter we will speak of this interest as separate account No. 7. Later on, he took a further loan of Rs. 1500 from the appellant and to secure the same executed a deed of further charge on 15th July 1927 in favour of the latter. In 1934 Narendra instituted a suit for recovery of his dues. In the suit he made Bhupendra and his father Bhujagendra parties defendants and prayed for the sale of the mortgaged properties in default of payment. He claimed a mortgage decree not only for the balance of the loan, due to him after crediting payments made; by the mortgagor (Es. 3763-8-5) but also for an additional sum of Rs. 113-4-9 which represented the sum which he had paid as revenue to save the mortgaged, premises and incidental costs. The learned Subordinate Judge by his preliminary decree allowed him to add to his mortgage claim Rs. 98-2-91 on this head and passed in his favour a preliminary decree for sale on 26th July 1935 for Rs. 6773-4-0 (Ex. RR and SS-B We have marked the paper-books of F.A. 203 of 1937 thus : : Part I as A, Part II, Vol. I as B. Part. II, Vol. II as C. Additional paper-book as E and the paper-book of F.A. 204 of 1937 as D. 323 and 337. The final decree for sale which followed the terms of the preliminary decree was passed on 31st October 1935 [Ex. SS (1)-B 332.]

3. Separate Account No. 7 fell into arrears for the September kist of 1934. The January and the March kists of 1935 also were not paid with the result that this separate account was advertised for sale on 30th' May 1935, for the accumulated arrears of revenue of these three kists. Separate Account No. 13 also was in default for the March kist of 1935 and that interest wag-also advertised for sale (Ex. HHH; B-308); 24th June 1935 was the date fixed for sale; On that date, the Collector put up for sale-Separate Accounts Nos. 7 and 13 but no bids-were offered. He stopped the sale and ultimately after following the proper procedure laid down in Act 11 of 1859 advertised the; entire estate for sale. The copy of the sale notification which was affixed in the Collector's kutchery is Ex. 18 (B-341) and the notification as published in the Calcutta Gazette is Ex. 39 (B-344). In the said notification many other revenue paying estates in default were included. The first mentioned notification purports to be under Sections 6 and 13, Revenue Sales Act, and the second under Section 13. The heading is not complete, for, the different columns of the table make it obvious that the form was a combined form intended for use for the advertisement of sales of entire estates as also of separate accounts. The way in which the different columns have been filled up puts it beyond controversy that the entire estate (Touzi No. 491) was notified for sale for the arrears of revenue amounting to Rs. 8261-10-5 due in respect of the entire estate. 23rd September 1935 was fixed for the sale of the entire estate and on that date the plaintiff purchased the same for Rs. 48,000. On 10th December 1935, an order was recorded by the Collector confirming the sale and directing the sale certificate to issue. The said order concluded in these terms:

Adjust sale proceeds after receipt of the report of arrears from the Touzi navis who will take note and close all separate accounts.

4. The plaintiff actually got the sale certificate on 14th December 1935 and he was put in symbolical possession by the Collector on 19th December following. On 22nd January 1936 he served notices on the defendant, the Midnapore Zamindary Co. Ltd. annulling the patni, darpatni and ijara settlements of the latter in the mouzas specified therein (Ex. 5 series B-397 to 399). A similar notice was served on Manindra Nath Bose. On 6th April 1936, he filed the above-mentioned two suits. The suits were heard together. The Subordinate Judge dismissed both by his judgment and decree dated 17th May 1937. F.A. No. 203 is directed against the decree passed in Title Suit No. 45 and F.A. No. 204 against the decree passed in the other suit. Before we take up the pleadings, we would set out the title under which the defendants in the two suits claim to hold the land.

5. On 25th March 1860 two of the proprietors of Estate No. 491, Lakshmidas Mustafi and Sarbeswara Mustafi, executed two patni pottas in favour of J.B. Makintosh, Manager of the Patikabari concern of the Bengal Indigo Co. (Ex. II and Ex. H 1-B 18 & 23). The grant was taken by Makintosh for the said Indigo Company. The two pottas are in the same terms. By the first potta (Ex. H) Lakshmidas created in favour of Makintosh three patni taluks, namely : (i) a patni taluk in respect of his f ourannas undivided share in four mouzas and one para, namely nij mouza Sadipore, Bajapore, Azlampore, and Haitapara including Jannagar at an annual rental of Bs. 456-8-0 ; (ii) a patni taluk in respect of his undivided 4as. 8gds. 3k. 5d. share in a resumed chakran called Khaskhamar Topla at an annual rental of Rs. 13; and (iii) a patni taluk in respect of his undivided 4as. 17gds. 3k. Id. share in Diar Kartikpur alias Muktarpur at an annual rental of Rs. 373.

6. By the said second potta (Exhibit H-1) Sarbeswar who had the same share in the estate as Lakshmidas had created three similar patni taluks in favour of the said company. The net result was that the Bengal Indigo Co. had a patni taluk covering eight-annas share of the four mouzas, viz. nij Sadipore, Bajapore, Azlampore and Haitapara. This patni goes by the name of Patni Mehal Sadipore. Another patni taluk covering 8as. 17gds. 2kr. odd share in Topla and a third patni taluk covering 9as. 15gds. 2k. Okr. 2d. share in the Diar Kartikpore alias Muktarpur. On 19th July 1862 the said company applied for registration of the said tenures under Section 40 of Act 11 of 1859 and the said tenures were registered on 11th November 1862 by the Collector in the Common Begister (B-211, B-200 to 205). The Midnapore Zemindary Co. Ltd. has acquired the interest of the Bengal Indigo Co. in these patni taluks. The title of the other defendant, Manindra Nath Bose, rests upon four patni grants, Ex. DD, Exs. DD-1, DD-2 and DD-3 made respectively on 3rd October 1844, 3rd October 1844, 21sfc November 1851 and 3rd October 1854 (B-1, 5; 9 and 14) by some of the co-proprietors of the said estate in favour of his predeoessor-in-interest, Mohendra Narayan Dutt. These grants cover 13as. 6gds. 2k. 2kr. share of mouza Salikha alias Salikya. On 28th July 1862 applications under Section 40 of the said Act were made by the tenure-holder to have them registered and they were registered in the Common Register by Collector on 30th October 1862 (Ex. GG-B. 212 to 226).

7. The plaints filed in the two suits are in the same terms. The plaintiff recites his purchase of the entire touzi at the revenue sale and states its result, namely that he acquired the estate free from all encumbrances. He states that he got the sale certificate and the Collector put him in symbolical possession. He went to take actual possession of the lands in suit, but was resisted by the defendants who claimed to hold them as included in their tenures which were protected by being registered in the Common Register. He then caused enquiries to be made and found that most of the lands had been entered in the Common Register as being lands of the tenures which we have detailed above. The lands of Schedule 4 of Suit No. 45 were however Outside the entries in the Common Register. He then states that the registration of the tenures were invalid on the grounds mentioned in his plaint and accordingly the defendants were entitled to no protection against him. He prayed for four specific reliefs : (a) declaration of his title in zamindary right; (b) cancelment of the tenures; (c) possession by evicting the defendants; and (d) mesne profits.

8. The defence of the Midnapore Zemindary Co. Ltd. as disclosed in its written statement, is as follows : (a) that sale of the entire estate by the Collector was without jurisdiction, as before the sale he had not closed the separate accounts; (b) that the plaintiff's purchase was subject to encumbrances. This is put on the ground of fraud, it being stated that the plaintiff as the mortgagee of Separate Account No. 7 was bound in law to pay the revenue due from fine same but he, with a fraudulent motive, had wrongfully defaulted to pay the said revenue and so brought about the sale and taking advantage of his own wrong purchased the same; (c) the plaintiff is estopped from claiming that he had purchased the estate free from encumbrances. The case of estoppel is based on the allegation that the plaintiff did not claim his mortgage dues under Section 73, T.P. Act, and had by his conduct led the defendant to believe that the sale was subject to incumbrances and to change its position by allowing it (qua part proprietor of the estate) to withdraw the surplus sale proceeds; and (d) that the patni tenures held by it had been duly and validly registered in the Common Register of tenures and the lands in suit are included in those tenures.

9. The written statement filed by Manindra Nath Bose, the original defendant in Suit No. 46, raised the same defence. On his death his heirs were brought on the record. On 9th January 1937, they filed another written statement (D. 29 Part I) which raised other defences. The additional pleas which are not covered by the written statement of theMidnapore Zemindary Co. Ltd. in Suit No. 45 and by the written statement of Manindra, in Suit No. 46 are : (i) plaintiff intentionally made default in the payment of revenue, which as mortgagee he was legally bound to pay in collusion, with his 'near relative Mohendra Nath Kundu who was also a benamidar of Panchanan Mondal;' (ii)(a) the plaintiff had not acquired a 'valid title by his purchase as separate account No. 491/4 was under attachment under Section 99, Cess Act and the order of the Collector for withdrawing the said attachment before the full satisfaction of the arrears of cesses due and the execlusion of the arrears due in respect of separate account No. 491/4 during the time of the said attachment were without jurisdiction;' (ii)(b) that separate account No. 491/5 having been already sold, the order of the Collector for sale of the entire estate before the confirmation of the said sale was unauthorized.

10. We have analyzed the pleadings in some detail to show to what extent the learned Subordinate Judge had allowed the defendants to go beyond their case as made in their written statement. The findings on which the Subordinate Judge has dismissed the plaintiff's suits are : (1). Plaintiff has no title, the real purchaser being a limited company, Messrs. Raja Janaki Nath Roy Narendra Nath Roy Ltd. The suit is not maintainable at his instance. (2). The sale of the entire estate by the Collector was illegal and ultra vires inasmuch as (a) the separate accounts were not closed by him before the sale; (b) Section 5, Eevenue Sales Act, had been contravened; (c) Section 17 of the said Act had also been contravened. (3). The sale was brought about by fraud on the part of the plaintiff. He as mortgagee was under a contractual liability to pay revenue but had committed wilful default. (4). The sale was also brought about by the wilful default of the plaintiff's relation, Mohendra Nath Kundu, who was the real owner of separate account No. 13 and who had acted in collusion with the plaintiff. (5). The plaintiff by fraud prevented the defendant company from bidding at the revenue sala and from applying to the Commissioner of the Division for the reversal of the sale. (6). The plaintiff is estopped from claiming that he has purchased the estate free from encumbrances. (7). The tenures of the defendants had been validly registered in the Common Register of tenures. In any event the legality of the registration cannot be questioned in the Civil Court more than a year after their registration. (8). The chit lands of Sadipore in Mouzas Sreerampore, Mirgoy, Joyrampore, Kanainagore, and the two Azlampore chaks, as also char Muktarpore in the District of Murshidabad and small areas in Protapnagore and Nazirpore are included in the defendant company's tenures and from them also the said company cannot be ejected.

11. Dr. Basak on behalf of the appellant has challenged all these findings and conclusions and has made a general grievance that the Subordinate Judge has gone much beyond the defendants' case as pleaded in their written statement. The last mentioned objection has great force but as the appeal has been fully argued before us on the merits also, we propose to deal with all the points on which the decision of the lower Court has been based.

1. It is an admitted fact that the plaintiff is a son of Baja Janaki Nath Boy and a share-holder and director of the private limited company named Messrs. Baja Janaki Nath Boy Narendra Nath Boy & Co. Ltd. The plaintiff offered the highest bid in his own name at the revenue sale and was declared purchaser by the Collector. The sale certificate issued by the Collector stands in his name. The legal title accordingly is vested in him. It is however fairly established on the evidence that the beneficial owner was the said private limited company. The admissions of the plaintiff made in Ex. E(B-347), Ex. C (B 349), Ex. C (1) (B 353), Ex. D to D (2) (B 389-391) and Ex. G. (B 354) have not been satisfactorily explained by him. An attempt was made by his witness No. 3, Haripada Banerjee (A 88 1. 45) but that attempt has failed. If the point had been specially taken in the written statements and an issue framed probably a better attempt would have been made by the plaintiff and his account books may have been produced to show that it was with his money and not with the money of the private limited company that he had made the purchase at the revenue sale. But, be that as it may, on the evidence as it stands we concur in the finding of the learned Subordinate Judge that the beneficial owner is the private limited company, Messrs. Baja Janaki Nath Boy Narendra Nath Boy & Co. Ltd. The plaintiff, however, has the bare ownership. We do not see why he cannot be regarded as the benamidar of this private limited company. 'We do not also see any force in the learned Subordinate Judge's observations that 'the plaintiff is not a benamidar but a director' of the company and that he cannot be' allowed to maintain the suit on the footing that he is the benamidar as that was not his case in the plaint. We consider it unfair to pin down the plaintiff to the averments in his plaint but at the same time allow the defendants to make a case at the time of the argument which was not pleaded by them in the written statements. Two courses were open to the learned Subordinate Judge, (i.e.) either not to allow the defendants to raise the point or to allow the plaintiff to meet the point in the way he has attempted to do, namely, by saying, that assuming that he was a benamidar, he could maintain the suit in that character.

12. The position in law is that a benamidar is a trustee for the beneficial owner. The legal title is in him but he has the bare ownership. He is a trustee, a bare trustee : Gopee Krist Goswami v. Gunga Persaud Gosain (1854-57) 6 M.I.A. 53 at pp. 74-75; Bilas Koer v. Desraj Ranjit Singh (1915) 2 A.I.R. P.C. 96 at p. 205. He represents the real and beneficial owner, and as the legal title is in him he can maintain in his own name a suit for possession : Gur Narayan v. Sheo Lal Singh (1918) 5 A.I.R. P.C. 140 at p. 9. The fact that : the plaintiff had before suit admitted that the private limited company was the real owner and that he as director of the said company had asserted the claim of the company does not make inapplicable the aforesaid principle. In Gur Narayan v. Sheo Lal Singh (1918) 5 A.I.R. P.C. 140 no doubt the alleged benamidar had all along asserted that he was the real owner and the real owner had not put forward a claim to the property, but as we understand the decision the ratio that the benamidar can sue for possession in his own name is that he is the trustee for the beneficial owner and represents him. We accordingly hold that the plaintiff can maintain the suit for possession and being the declared purchaser at the revenue sale has the right to avoid and annul all unprotected under-tenures under the provisions of Section 37 Bengal Land Revenue Sales Act (Act 11 of 1859). The case in Moizuddi Biswas v. Ishan Chandra Das (1911) 13 C.L.J. 293 is no authority for the proposition that only the real or beneficial owner can exercise those rights. What it lays down is that the real owner also has the said rights, though the sale certificate issued by the Collector be in another's name.

2 (a). It appears from the record that separate account No. 7 was in default to the extent of Rs. 295-8-0, the revenue payable for the same for the kist September, 1934. It was advertised by the Collector on 6th December 1934 for sale (Ex. HHH (1) B-306). It was not however put up to sale on the advertised date (6th December 1934) for some reason or other which does not appear. It was in default for kist January 1935. It was not however put up for sale for this default. It was again in default for the March kist, 1935. This time the Collector advertised it on 30th May 1935 for sale. The amount in arrear was shown to be Rs. 693-8-8 (Ex. HHH-B 308 to 310). This amount, Rs. 693-8-8, was made up as follows : Rs. 295-8-0, arrears for the September kist, 1934, Rs. 185-8-0 for the January kist, 1935, and Rs. 212-8-8 for the March kist, 1935, (for the kists see Ex. XX-E 26-27). This document has not been printed properly but typed copies were supplied to us. Separate Account No.13 was also advertised for sale on the same date for the arrears of revenue for kist January and March, 1935, which amounted to Rs. 357-9-0 (for the kists see Ex. Rule 40-41). The date fixed for the sale was 24th June 1935. What followed has been recorded in the Collector's Order Sheet of Revenue Sale Case No. 43 of 1935-36. Three certified copies of this order sheet have been filed: one by the plaintiff, the second by the defendant company, and the third by the defendant in Suit No. 46. They are printed respectively at B-313, B-316 and D-7 Pt. II. As the certified copies produced by the defendants differed materially from that produced by the plaintiff we had the original order sheet brought up. On comparison we find that none of the certified copies are complete copies of the order sheet. The copies printed at B. 316 and D-7 Pt. II are however more accurate than the copy printed at B-313. We would accordingly proceed upon the basis of the copy printed at B-316. We would however point out that in the left hand margin of the order dated 5th July 1935 there are in pencil the figures:

4565-12-111025-14- 6----------3539-14- 5278- 4- 0----------3261-10- 5and on the right hand margin the names and descriptions of two mouzas are given, the two separate accounts 7 and 13 mentioned and the names of their recorded proprietors. Then there is apparently under the signature of the touzi-navis the following statement:

L.R. arrear of the parent estate including balance of June kist, 1935, is Rs. 4565-12-11 out of which 1025-14-6 is under certificate. Annual revenue of the estate is Rs. 18263-14-9.

13. Then follows an order signed by the Collector in these terms : 'Rs. 278-4-0 should be deducted from the arrear at the time of advertisement.' On the left band margin of the order dated 10th December the dues of the Government are noted in-detail in the like manner as appear in the left hand margin of the next order. We are not relying upon or basing our judgment on these entries in the margin. There is however a slight inaccuracy in the order dated 10th December 1935 as printed at B-317. The order as recorded is what is to be found printed at B-314 except that the sentence ends at the words 'who will take note.' The word 'and' after that is not in the original. Just at this place the phrase 'close all separate accounts at once' appear in the left hand margin followed by the words 'Note in roll and ledger.' The last, mentioned words which form a part oft the Collector's order as noted in the margin have been omitted. These omitted words have some bearing in view of the arguments advanced before us.

14. On 24th June 1935 no bids were offered by anybody for Separate Accounts No. 7 and 13. On that date the Collector openly declared in accordance with the provisions of Section 14 of Act 11 of 1859 that the entire estate would be put to sale at a future date unless the recorded cosharer or sharers would within 10 days purchase the shares in arrears. This period of ten days was over on 5th July 1935. None of the recorded cosharers of the estate came forward, with the result that the Collector recorded1 an order on the same date that the entire-estate would be put to sale on the next sale day. He asked the touzi-navis to report the arrears of the 'parent estate' including those of kist June, 1935. There were also directions on the record keeper to, supply particulars which would be necessary for the advertisement. The words 'parent estate' in reference to the context obviously mean the entire estate-touzi No. 491. Two documents Ex. 20 and Ex. 17 printed respectively at E-8 to 43 and B-415 to 424 will have to be examined in some detail at this stage. These documents have not been printed correctly. The original documents were referred to in the coarse of the arguments and now we have been supplied by the parties with correct typed copies of Ex. 20 and another printed copy of Ex. 17 after both had checked them. We are taking the facts from the typed copy of Ex. 20 and the newly printed copy of Ex. 17 which we mark as book F.

15. On 20th July 1935, A. Din, an officer of the Collector, balanced the accounts of each of the Separate Accounts up to the June kist, 1935, taking into account all amounts paid by recorded proprietors of the said accounts on or before 28th June 1935, which was the last date for payment notified by the Board of Revenue under Section 3 of Act 11. The result of his calculations as they appear from Ex. 20 is as follows:

-----------------------------------------------No. of Separate Excess Payment. Deficit.Account. -------------- -----------Rs. As. Ps. Rs. As. Ps.-----------------------------------------------No. 391/0 0 1 0 0 0 0No. 391/1 18 0 6 0 0 0No. 391/2 0 0 0 836 15 8No. 391/3 0 0 0 841 0 0No. 391/4 0 0 0 1025 14 6No. 391/5 0 0 0 697 11 11No. 391/6 0 0 4 0 0 0No. 391/7 0 0 0 761 0 1No. 391/8 0 1 4 0 0 0No. 391/9 0 0 0 0 0 0No. 391/10 0 0 0 0 0 0No. 391/11 0 0 1 0 0 0No. 391/12 0 0 8 0 0 0No. 391/13 0 0 0 421 6 8No. 391/14 0 0 0 0 0 0----------------------------------------------

16. In Ex. 20 the total is not struck. The total of excess payments made by the proprietors of Separate Accounts Nos. 391/0, 391/1, 391/6, 391/8, 391/11, and No. 391/12 comes up to Rs. 18-3-11 and the total deficit of the other accounts comes up to Rs. 4584-0-10. The net deficit of the entire estate according to this account was Rupees 1565-12-11. From Ex. 20 it also appears that the proprietor of Separate Account No. 5 had paid a sum of Rs. 278-4-0 on 15th July 1935, i.e., after 28th June 1935. In Ex. 20 it is also noted that the sum of Bs. 1025-14-6 which was shown as the arrears of Separate Account No. 4 up to June kist, 1935 was really the arrears for the September kist, 1934 and January kist, 1935 and that for this sum a certificate under the Bengal Public Demands Recovery Act had been filed (Certificate Case No. 146 of 1934-35). The words 'Separate accounts closed' are written across the sheets' reserved for the third kist of 1935 (September kist, 1935) for each of the separate accounts. The sheets reserved for each of the Separate Accounts for fourth kist (kist January 1936) are kept blank.

17. Exhibit 17 is another portion of theTouzi ledger of Estate No. 491. In it the accounts of all the separate accounts are merged and totalled. The net arrear demand of the entire estate, i.e., demand up to March kist of 1935, is stated to be Rs. 3930-4-4. The current demand of the entire estate, i. Rule of June kist 1935, is shown as Rs. 1608-14-9. The payments made by the proprietors of separate accounts for this kist are shewn in detail at the top of the first page of Book F. and the total comes up to Rs. 973-6-2. This is shown at the lower portion of the same page under item 1. This amount is subtracted from the total current demand and the balance is struck at Rs. 635-8-7, which is the net arrear of the entire estate for the June kist, 1935 (Items 6, 7 and 8). The net arrear due from the entire estate is shown thus as Rs. 3930-4-4 on account of the earlier kists and Rs. 635-8-7 on account of the June kist (Item No. 8). This comes up to Rs. 4565-12-11, the sum exactly arrived at by totaling the figures appearing in Ex. 20 which we have noted in a tabular form earlier. This calculation is signed by the same officer of the Collector A. Din on 20th July 1935. In the second sheet of book If, which contains the accounts of the second kist of 1935 (September kist 1935) Rs. 4565-12-11 is brought forward and shown as the total arrears of the whole estate up to the previous kists. A payment of Rs. 278-4-0 made by the proprietor of Separate Account No. 5 on account of revenue on 15th July 1935 is noted. In the challan this was apparently earmarked by the payee for a earlier kist (probably June kist) and is accordingly credited as pay-ment towards the past or arrear demand. This sum is deducted from Rs. 4565-12-11 and the balance due for the entire estate is struck at Rs. 4287-8-11. This much appears from Ex. 17. If the sum of Rs. 1025-14-6, (the arrear up to the January kist 1935 shown as due for Separate Account No. 4 in Ex. 20 and for which steps had already been taken for realization by a certificate filed under the Bengal Public Demands Recovery Act) be deducted from the aforesaid sum it leaves a balance of Rupees 3261-10-5. The entire estate was advertised on 12th August 1935 and this is the exact sum shown as the arrears of revenue of the whole estate for the recovery of which the revenue sale was to be held (Exs. 18-B, 341-2 and Exs. 39-B, 344-5). The annual revenue payable by the entire estate, namely Rs. 18,263-14-9, is also correctly shown in those advertisements. On these facts we do not see any substance in the findings of the Subordinate Judge which we have numbered as 2(a) and 2(c). We do not see any force in Mr. Sen Gupta's argument that the separate accounts must be closed by an order of the Collector in the sense that they must be wiped away from the face of the Collector's A Register and the touzi ledger before the entire estate could be sold under the provisions of Section 14 of Act 11. The order of the Collector 'close all separate accounts at once' followed by the words 'note in roll and ledger' is only a direction to amend the Collectorate register and ledger and was a necessary direction, for, after a man had purchased the entire estate at the revenue sale there was no meaning in keeping a register of separate accounts or in keeping separate accounts in the touzi ledger.

18. In support of his argument Mr. Sen Gupta relies upon certain passages in the judgment of this Court approved by the Judicial Committee in its entirety in Haji Mutasaddi v. Mohamed Idris (1915) 2 A.I.R. P.C. 177 and upon Section 10 of Act 11. His argument is that the opening of a separate account has the effect of severing the liability of the recorded proprietors of the entire estate. From the date of the Collector's order opening a separate account in favour of one of several proprietors of an estate, the liability of that co-proprietor to pay his share of the revenue becomes entirely separate and so long as the separate account in his name continues to be maintained in the Collector's register he is not liable for the payment of revenue due on another's share. His liability continues to be separate and he can be made jointly liable, says Mr. Sen Gupta, for another's share of revenue only after the separate account has been closed in a formal way, in pursuance of an express order of the Collector. Before such an order of the Collector is passed, his share cannot be included in a sale which is to be held for the default of another. His contention in substance is that before a Collector can hold a sale of the entire estate under Section 14 of Act 11, he must by an order 'close the separate accounts' - 'order the separate accounts to be wiped out of his registers and ledgers.' Before Act 11 of 1859 was passed into law, an estate could be put up for sale for arrears of revenue however small the arrear might have been. The Collector was not at all interested in seeing who among the several recorded proprietors was the actual defaulter. He was only concerned in seeing whether the estate was in arrear or not. If it was in arrear he could sell. One of the objects of Act 11 was to remove the hardship on a co-proprietor who had paid his share. Equity demanded that the defaulting co-proprietor's share should be first put up to sale. At the same time, it was necessary that the Government should not suffer. The scheme of the relevant provisions of Act 11 proceeds upon these two principles. It allows a co-proprietor to open a separate account. As soon as he has been allowed to do so by the Collector his share is not liable to sale for default of his co-proprietor subject to certain contingencies. Para. 2 of Section 10 has its counterpart in Section 13; the latter, so to say, is the corollary to the former. A privilege was thus conferred upon the co-proprietor who had opened a separate account but that privilege is to be not an absolute one. If the arrear demand of the Government was not likely to be met by the sale of the share of the defaulter, either from the sale proceeds of the defaulter's separate share or by the other recorded co-sharers paying up those arrears, the right of the estate to hold the entire estate responsible for its revenue demands is to be restored. The Government is not to suffer loss. The declaration made by the Collector under Section 14 is to afford the last chance to the other recorded co-proprietors, who have opened separate accounts to save their interests. If they do not come forward to pay up the arrears due from the separate share in question the privilege which was conferred to them by the last paragraph of Section 10 is to cease, and the Collector is to proceed further for the purpose of bringing the entire estate to sale, as the estate, as it was at the time of its permanent settlement, is the security for the Government demand. The Act does not contain any provision for closing separate accounts. Section 14 speaks only of a declaration by the Collector; makes the same a necessary preliminary step for putting at a future date the entire estate to sale. Mr. Sen Gupta's argument has the effect of inserting in Section 14 an additional clause, namely that the Collector must 'before ordering the sale of the entire estate close all separate accounts' in the sense in which Mr. Sen Gupta has used the last mentioned phrase.

19. The principle and the scheme appear to us to be quite clear. If a separate account is in default, it only is to be put to sale by the Collector in the first instance. If the bids offered cover the Government demand the matter ends there. The purchaser gets the share and the Government demand is satisfied. If however no bids are offered or the bids offered fall, short of the Government demand the sale of the separate share is to be stopped. The Collector is required to make a declaration that he will sell the entire estate at a future date if within 10 days none of the recorded cosharers pays up the Government demand. If within the said period the arrears are paid up, the recorded co-proprietor so paying up gets the share in default and the Government demand is satisfied. If however within the said period no recorded co-proprietor pays up the Government demand, the entire estate has to be put to sale, that is to say the security on the basis of which the Government permanently settled the estate with the zamindar is to be enforced by the Government. As the purchaser of an entire estate gets it free from encumbrances the chances would be that the Government demand would be satisfied from the sale proceeds.

20. But it is a well-established principle that an estate can only be sold by the Collector under Act 11 if there are arrears of revenue. If the estate is not in arrear the Collector would have no jurisdiction to sell : Bal Kissen Das v. Simpson (1898) 25 Cal 833. Before the declaration made by the Collector under Section 14 can be followed up by him, it is therefore necessary that there must be an arrear of revenue due from the entire estate. The accounts of the separate [Shares in respect of which separate accounts had been opened under Section 10 must accordingly be merged into one account, the credits and the revenue demands must be totalled up and the balance struck. If the balance so struck is a deficit one then and then only can the Collector sell the entire estate. We go further and state that if the Collector without striking such a balance brings the entire estate to sale, the sale will be held to be a good one - a sale with jurisdiction - if it is shown to the Civil Court when the sale is challenged that on the balance being struck there was in fact, an arrear due from the entire estate. For the purpose of satisfying himself that the entire estate is in arrear, the Collector in practice merges all the accounts into one, and he ought to do so. He is under no obligation at that stage to amend his register or his touzi ledger by striking out the separate numbers and separate accounts. This is in our opinion the effect of the decision, in Haji Mutasaddi v. Mohamed Idris (1915) 2 A.I.R. P.C. 177. The phrase that 'separate accounts must be closed' occurring in that judgment, as the following sentence shows, means only that the separate accounts must be merged into one, the arrear demand from each separate account opened under Section 10 must be added up, the payments by the proprietors of each of such separate accounts made up to the last date of payment notified under Section 3 must also be added up and the one subtracted from the other. If the balance shows an arrear for the kist for which the sale of the entire estate is proposed and advertised, the sale would be with jurisdiction : Haji Mutasaddi v. Mohamed Idris (1915) 2 A.I.R. P.C. 177 works into Section 14 the principle formulated in Bal Kissen Das v. Simpson (1898) 25 Cal. 833.

21. In the case before us the Collector merged all the accounts into one. The figures given in the touzi ledgers Ex. 20 and Ex. 17 have never been challenged. They show that a large arrear was due up to the June kist of 1935. There is no substance in Mr. Sen Gupta's argument that as the-advertised sale was for the June kist 1935, the arrear demand of Rs. 3930-4-4, i.e. for kists before June kist cannot be taken into account. Even if this argument is accepted the entire estate was in arrear for the June1 kist of 1935, to the extent of Rs. 635-8-7 {see Ex. 17; F-1). Mr. Sen Gupta says that from the papers this figure is wrong. He says that Rs. 278-4-0 paid on the 15th July 1935 as also the sum of Rs. 357 being the-sale proceeds of Separate Account No. 5 ought to be deducted from this sum of Rs. 635-8-7, and if that is done there would be no arrear for the June kist of 1935. This is not correct, for still the small amount of four annas and seven pies would be due. Even if this small sum be disregarded, Rs. 278-4-0 cannot be taken into account in considering the question of liability for sale, for this payment was made after 28th> June, the last date for payment of arrears fixed by the Board of Revenue under Section 3 of the Act. The sum of Rs. 357 represented the arrears of revenue of Separate Account No. 5 for the January kist of 1935 or may be for an earlier kist. This is apparent from the date on which that share was put up for sale which was 23rd March 1935, that is five days earlier than the last date for payment of the March kist fixed under Section 3 (28th March 1935). No bids were offered on the sale date. The Collector made the declaration under Section 14 and within ten days a recorded proprietor, Panchanan Mondal, paid up the arrears, [Ex. HH (1); D. 4-II]. The sum of Rs. 357 should and must have been credited towards the arrears of the kist for which the sale was held. That kist was a kist earlier than the March kist. Hence the sum of Rs. 357 cannot be credited towards the June kist of 1935. If this point had been raised in the lower Court that part of the touzi ledger which has not been produced would have established conclusively how the sum was appropriated, but even without the part of the touzi ledger before us the inference we have drawn necessarily follows. We accordingly hold that finding No. 2(a) of the lower Court is unsound and we reverse the same.

2 (b). Section 5 of Act 11 requires the publication of a special notification before an estate which is under attachment by an order of a Civil Court can be sold by the (Collector for arrears of revenue. If only a part or share of the estate is under attachment Section 5 also applies : Bunwaree Lall Sahoo v. Mohabeer Proshad Singh (1873) 1 I.A. 89. In the case before us there is no evidence that such a notification was issued. The point however was not raised in any of the written statements that any share or any of the separate accounts were under attachment in consequence of a Civil Court decree. The attachment of Separate Account No. 4 by the Collector under Section 99, Cess Act, is the only attachment pleaded in para. 8 of the second written statement filed in Suit No. 46. The plaintiff, appellant's advocate's argument that the point ought not to have been allowed to be raised for the first time in argument before the Subordinate Judge has great force, for if the point had been taken in the written defence, the plaintiff would have been in a position to prove the publication of the special notification under Section 5. Apart from this, on the facts as established the point so raised by the defence has no legs to stand on.

22. Separate Accounts Nos. 2 and 3 were attached on the orders of a Civil Court passed in Rent Execution Cases Nos. 169 of 1932 and 106 of 1934. The fact of attachment is noted in the touzi ledger, Ex. 20, but the date does not appear. It however appears from the order sheet of the Civil Court that the two execution cases were dismissed for the decree-holder's default on 9th May 1933 and 20th December 1934, respectively [Ex. 40(a) B-302 and Ex. 40(b)B-311]. Under Order 21, Rule 57, Civil P.C, the attachment ceased automatically. In law no attachment was subsisting after these dates for the Civil Court made no order for the continuance of the attachments. The fact that there was no communication from the Civil Court to the Collector after the execution cases had been dismissed for the decree-holder's default cannot keep in being the attachments which the law had put an end to. As the attachments ceased much earlier than the material point of time no notification under Section 5 was required. There is another difficulty in P.A. No. 203. The Midnapore Zemindary Co. Ltd. which was also the recorded proprietor of one of the Separate Accounts No. 14 withdrew the surplus sale proceeds. On the principle underlying the last part of Section 33 of Act 11 the said company is precluded from contesting the suit on this ground. This finding of the lower Court is also reversed.

2 (c). Section 17 of Act 11 provides that no estate held under an attachment by the revenue authorities otherwise than under an order of a judicial authority, shall be liable to sale for arrears accruing whilst it was so held under attachment. An attachment by the Collector under the provisions of Section 99, Cess Act, would come within the Section.

23. Separate Account No. 4 was in arrears for cess and was attached by the Collector under Section 99, Cess Act. The order of attachment was made by the Collector on 7th July 1934 but there is nothing definite to show when it was actually attached. Probably it was after 28th September 1934. The order of attachment was withdrawn on 13th March 1935. These facts appear from the Collector's order sheet Ex. TT(2) printed at B-303-305. In the same order sheet the Collector made an order dated 18th July 1935 to the effect that the withdrawal notices had been duly served. Prom this fact the Subordinate Judge concludes that the attachment was withdrawn on some day before 18th July 1935. He however further says that there being no evidence to shew that the withdrawal of attachment was notified according to law, it must be taken that the revenue sale was during the subsistence of the attachment. In our judgment the Subordinate Judge has committed two grave errors. The additional written statement filed in Suit No. 46, which is the only written statement that raised the point, proceeds on the footing that the attachment was in fact withdrawn by the Collector and only challenges the authority of the Collector to make the order of withdrawal (para. 8 D, 30 Pt. 1). The second fundamental error which the Subordinate Judge has made is that he has overlooked the terms of Section 17 of Act 11. That Section does not say that the Collector shall have no jurisdiction to sell during the subsistence of the attachment, but that he will have no jurisdiction to sell for arrears of revenue which had accrued whilst the estate was under attachment. In the same paragraph of the said written statement it is admitted that the arrears which had accrued during the period of attachment was excluded. We have also shown in the earlier part of our judgment that Rs. 1025-14-6 was the arrear which had accrued for that separate account after and during the attachment. This was excluded by the Collector from the advertised amount. Separate Account No. 4 had paid the demand for the March and June kist of 1935. In Ex. 20 the arrear demand, i.e., unsatisfied demand before kist June 1935, is stated to be the same figure Rs. 1025-14-6, which was shown as arrears up to the January kist' of 1935. This shows that the March kist of 1935 had been duly paid. The sum of Rs. 201-11-0 due for the June kist of 1935 was also paid on 28th June. The revenue sale was accordingly not for any arrear for this separate account which had accrued due during the period of attachment, even assuming that the attachment had continued after 13th March 1935, and had not been withdrawn before the date of revenue sale, namely 23rd September 1935. In fact however under Section 22, Bengal General Clauses Act, the Collector had jurisdiction to withdraw the attachment and the record shows that he had withdrawn the same on 13th March 1935. For these reasons we reverse the Subordinate Judge's conclusions on this point also. The sale has passed to the plaintiff's title to the entire Estate No. 491 and he has purchased the same free from encumbrances and with power to annul under-tenures, and the defendants cannot resist his claim for possession unless they can establish the case of fraud or bring their case under the third-exception to Section 37 of Act 11, or unless they can establish their case of estoppel.

24. We will now deal with the question of fraud and in this connexion consider the soundness of findings Nos. 3, 4 and 5. The fraud specifically pleaded in the written statements is based on intentional default of the plaintiff relating to Separate Account No. 7. In the additional written statement filed in Suit No. 46, the only addition is that in committing default the plaintiff had acted in collusion with his relative Mohendra Nath Kundu. Still it was the intentional default in respect of separate account No. 7. In this state of the pleadings, the defendants ought not to have been allowed to charge in addition fraud of a different nature. In para. 8 of the written statement filed in Suit No. 45, the defendant replies to the plaintiff's case that the registration of the defendant's tenure in the Common Register had been procured by fraud. In this connexion it was stated in that paragraph that it was a false statement and that the-plaintiff could not have made such a reckless statement in the plaint unless he was 'actuated by a fraudulent and collusive motive all through.' This statement cannot entitle the defendants to enlarge their case of fraud at the hearing. Relying upon the words 'all through' the defendants counsel has stated before us his case of fraud in the following terms. There was a deeply laid conspiracy, says he, between Mohendra Nath Kundu and the plaintiff from the beginning which was worked out according to the following plan.

25. Mohendra Nath and Harendra Nath Kundu had originally 2 as. 13 gds. 1k. 1kr. share in the touzi. Between 1925 and 1927 they gave Bhujagendra Mustafi 13 gds. Ik. lkr share out of their share. Bhujagendra then made default in paying revenue and the said share was purchased by the Muktear Radhanath Roy for Rs. 400. Radhanath then reconveyed the same to Bhupendra Mustafi, son of Bhujagendra. Then in 1927 Bhupendra mortgaged his share to the plaintiff, who advanced a sum far in excess of the value of the share. This he did with the object that when default in paying revenue for this share would be committed later on every one would be scared away from bidding at the sale of the said share and no recorded cosharer would come forward in pursuance of the Collector's declaration under Section 14 to take the share by paying up the arrear demand, seeing that the purchase of the share would be valueless, as it was subject to the heavy mortgage. By reason of the heavy mortgage a sale of the entire estate would thus be forced. The scheme worked according to the calculation of the plaintiff and Mohendra, for when Separate Account No. 7 was put to sale, no bids were offered and none of the recorded cosharers came forward to pay up its arrears with the result that the Collector did put the entire estate to sale. At this stage we may observe that there is absolutely no evidence to sustain the material facts in this chain.

26. The learned Counsel continues the narrative in the following manner. The plaintiff having managed by the aforesaid scheme to have the entire estate advertised for sale thought out the next step in the following way. He must purchase the estate cheaply and see that his purchase is not attacked by proceedings before the Commissioner of the Division. The only person likely to thwart his plans was the Midnapore Zemindary Co. Ltd. That Company qua proprietor had a small share, but had a valuable Interest in the shape of patni taluks. The Company must therefore be lulled by false hopes. The Company must be prevented in the first instance from offering rival bids at the revenue sale and after the sale must be induced not to take proceedings for the annulment of the sale. Accordingly, before the sale the plaintiff gave the Company to understand that its possession as patnidar would not be disturbed by him, and after the sale continued to act in a manner, which would raise the belief in the Company that he intended to fulfil his promise, till the time for preferring an appeal to the Commissioner of the Division had passed. He then suddenly took a different attitude towards the Company and showed himself in his true colours. We find no indication of this comprehensive case of fraud based on conspiracy formed between the plaintiff and Mohendra either in the judgment of the lower Court or in the evidence as adduced by the defendants. A material part of this conspiracy rests upon the ground that the plaintiff and Mohendra proceeded upon the calculation that none besides the Midnapore Zemindary Co. would come to offer rival bids at the revenue sale. Why the Shaha Babus of Amla, who were also rich cosharers, were left out of consideration by the alleged conspirators is not explained, and we do find in fact that strangerst namely Satya Saran Banerjee & Bros., offered bids and there was a neck to neck competition with the plaintiff (Bid-sheet B-320).

3. We will now deal with the case of fraud as pleaded in the written statement and also consider Findings Nos. 4 and 5; findings on a case of fraud which, as we have already pointed out, go beyond the pleadings. In order that the plaintiff may be charged with intentional or wrongful default in the payment of revenue due from Separate Account No. 7 it must be shown that he had a duty to pay the same. He was a mortgagee of this share but he was not a mortgagee in possession. There was accordingly no legal obligation on him to pay revenue due for this share. His security was also not at stake so long as the entire estate was not put up to sale by the Collector. If the separate account which was mortgaged to him was sold for its arrears his mortgage would have still subsisted on the land. The learned Subordinate Judge has also found that apart from contract between him and his mortgagor he was under no obligation to pay up the arrears of revenue due from the said share. But the learned Subordinate Judge has found that he had a contractual obligation. In this respect he has misconstrued the mortgage deed Ex. A(El.) By the terms of the said deed he, the plaintiff, did not take upon himself the duty to pay revenue. He had the option to pay the same, and in case he paid, he had the right to add the same to his mortgage claim. The foundation of the charge of fraud on this head accordingly disappears. (After dealing with certain evidence regarding the charge of fraud his Lordship proceeded.) The evidence given by the next witness Haridas is even more improbable. He says in his examination in chief that Mohendra requested him to see the plaintiff at his Calcutta residence. The purpose of Mohendra's request was that the plaintiff desired his master Ramendra Nath Roy, the Muktear, to act for him. In cross-examination the witness was dislodged from this position and had to admit that it was Ramendra who was requested to sea the plaintiff. This was natural, for Ramendra was the Muktear and had a reputation of competency. The witness saw the implication of his admission and said immediately that in one of the letters written by Mohendra to Ramendra a request was made to the latter to take the witness with him (Ramendra) to the plaintiff's Calcutta residence. This letter has not been produced. It is unthinkable that Ramendra should be asked specifically to take the witness with him when he would go to sea the plaintiff. According to the witness he was at best at that time a part time officer of Ramendra and then not an important one. His cross-examination however leaves the impression that he was not Ramendra's employee at all. He was a pleader's clerk, the clerk of Mr. Jyotindra Nath Roy.

27. In a later part of his cross-examination he admits that Ramendra did not go down to see the plaintiff and he alone went. This is remarkable. He was at most playing second fiddle and if Ramendra did not keep Mchendra's request to see the plaintiff we think that it is highly improbable that the witness would go down alone. The story told by him that he went to Calcutta and saw the plaintiff is highly improbable. More improbable is the story that the plaintiff received him cordially, took him upstairs, discussed matters with him and made the statement printed at the bottom of A-165 and top 166. The learned Judge says he was satisfied with the demeanour of this witness and of Anukul. The estimate of the evidence of a witness made by the trial Judge who had seen the witness is entitled to great weight. He had the advantage of seeing the witnesses. But that does not relieve the Appellate Court from examining the probabilities and circumstances of the whole case. In a case where the story told by the witness is highly improbable (having regard to the circumstances in the case the Court of appeal would be justified Jin rejecting his testimony. See observations of Woodroffe and Mookerjee JJ. in Laljii Mahamed v. Dadabhaijivanji (1916) 3 A.I.R. Cal. 964. The fact that Ramendra has not been examined, though he is still the Am-Muktear of the defendant Company, the fact that the letters said to have been written to him by Mohendra have not been produced, the fact that no officer of Messrs. Andrew Yule & Co., with whom the plaintiff is said to have had conversation was examined, the fact that this plea of fraud was not pleaded in any of the written statements filed and that no suggestion was made when the plaintiff's witnesses were examined lead to the conclusion that this part of the defendant's case is an after thought and a false one. The plaintiff did not examine himself because the charge of fraud as laid against him in the written statement rested entirely on a point of law, and on the construction of the mortgage instrument Ex. A, which Bhupendra Mustafi had executed in his favour. We hold that it was unfair to the plaintiff when the learned Subordinate Judge allowed evidence to be led by the defendants on this head of fraud. We disbelieve the said case. We accordingly reverse this finding of the Subordinate Judge also.

* * * * *6. The case of estoppel pleaded by the defendants rests on the following allegations. The defendants say that the plaintiff, who was the mortgagee of Separate Account No. 7 no doubt got the preliminary decree for sale before he purchased the entire estate at a revenue sale, but the final decree for sale was passed after the revenue sale. If he desired to insist on the rights of a purchaser of an entire estate at a revenue sale he ought to have applied under Section 73, T.P. Act, to the Court and ought to have asked the Court to embody in the final decree the fact that the property had been sold at a revenue sale free from encumbrances and the fact that his charge as a mortgagee had been transferred on the surplus sale proceeds representing separate account No. 7. He did not do this, with the result that the final decree was for sale of the said separate account. He later on applied for satisfaction of his dues as mortgagee decree-holder by attaching the surplus sale proceeds. This conduct of the plaintiff misled the defendants and the defendant company instead of taking proceedings before the commissioner of the division for annulment of the sale, withdrew its share of the sale proceeds, it being also a recorded proprietor of separate account No. 14. To determine this question it is necessary to consider the following points : (i) What was the representation made by the plaintiff or what was conveyed by his conduct, (ii) Did the defendants know of the representations so made by the plaintiff and (iii) Did the defendants or any one of them act on the faith of the said representation and did they alter their position.

28. The preliminary decree in the plaintiff's mortgage suit was passed on 26th July 1935. It was in the usual form. If the sum of Rs. 6673-4-0 was not deposited by the mortgagor within 31st October 1935 the mortgaged property was to be sold (B-327). On 23rd September 1935 the plaintiff purchased the estate at the revenue sale. Before the time for making application to the Commissioner for annulment of sale had elap3ed the final decree in the mortgage suit was passed on 31st October 1935 (B-332). The final decree followed the preliminary decree. On 17th December 1935 plaintiff filed his application for execution. (Ex. 6-B. 337). In the 10th column of his tabular statement he made his position absolutely clear. He stated that the purchase by him at the revenue sale was free from encumbrances and his charge as mortgagee had been transferred to the surplus sale proceeds. This is what Section 73, T.P. Act, enacts. His prayer was that an order may be passed to prevent the judgment-debtor, the mortgagor, from withdrawing the surplus sale proceeds and for taking steps for bringing the said surplus sale proceeds in Court. We fail to see how any person could come to the conclusion that the plaintiff's representation was that he had purchased the estate subject to encumbrances and without power to annul under tenures. There is besides no evidence on the side of the defendants that they had searched the records of the mortgage suit, or had acted on the faith of any representation of the plaintiff. None has come forward to say that either the Midnapore Zamindary Company or the other defendant had not taken any steps for annulling the revenue sale because they had been misled by the plaintiff's conduct. Haridas (D.W. 6) is the only man whose evidence has some bearing on the point. All he says is that on instructions of the defendant Company its pleader, Mr. Jatindra Nath Mukherjee, searched the records not of the mortgage suit, but of the revenue sale case (A. 166 1, 24).

29. There is a further difficulty in the defendant Company's way. The Company was, as we have already stated, a co-proprietor of the estate. On 10th December 1935. i.e. 7 days before the plaintiff made the application Ex. 6, for execution, the Company made an application to the Collector for withdrawal of the sale proceeds, (Ex. 14-B. 356), and the surplus sale proceeds were later on actually withdrawn by it. The application was made after the time for appealing to the Commissioner of the Division under Section 25 of Act 11 had expired. But these facts would have prevented the Company urging irregularities of the revenue sale, if any, in the Civil Court (Section 33). The Company attempts to make the case that it would never have withdrawn the surplus sale proceeds which would have prejudiced it if the plaintiff had not made the representation conveyed to it by his conduct that his purchase was subject to encumbrance. We have pointed out that no such representation was made by the plaintiff or conveyed to the defendant. To meet the difficulty presented by the fact that the Company's application for withdrawal was earlier in point of time than the plaintiff's application for execution, Haridas (D.W. 6) says that the Muktear Ramendra who had a power of attorney from the Company, made the said application on his own responsibility without informing the Company. Later on the Company was informed but it instructed Ramendra not to proceed further in the matter till he got definite instructions to withdraw the money. The Company then instructed its pleader Mr. Jatindra Nath Mukherjee to search the records of the revenue sale case and after Mr. Mukherjee had completed the search and made his report the Company instructed Ramendra to withdraw the sum and then the money was actually withdrawn on 16th January 1936.

30. We cannot believe this story told by the witness. The Company has its head-office at Calcutta and Ramendra was a Muktear residing and practising at Krishnagar in the District of Nadia. If any such instructions had been given they must have been conveyed by letters. In any event they would have been in writing. Where are these letters or written instructions? None has been produced. Ramendra avoids the box. What was the result of Mr. Jatindra Nath Mukherjee's inspection we do not know. Where is his report and why has he not been examined? These require explanation and none has been offered by the defendant company. There is no evidence on the side of the defendants to sustain any of the grounds necessary to establish the case of estoppel. We had had arguments for days on this point and the point of fraud with no substantial foundation on facts.

31. Mr. Sen Gupta says that the evidence of Haridas must be true because there must have been these instructions by the Company to Ramendra, because otherwise Mr. Mukherjee would not have searched the records of the revenue sale case and the payment from the Collector's office would have been received much, earlier than 16th January 1936. There would have been some basis, even than a very slender one, if Mr. Mukherjee had been asked to search the records of the mortgage suit also. The interval between the application for withdrawal and the actual withdrawal of the sale proceeds does not necessarily lead to the conclusion that the Company had in the meantime asked Ramendra not to proceed further. What was the total amount of surplus sale proceeds was only calculated in the Collector's office on 14th December 1935 (B-317). The Collector asked for a report from the recordkeeper when the Company applied for withdrawal of its share of the surplus sale proceeds. The said report was drawn up on 17th December (B-356). The Christmas Vacation intervened shortly after. The next kist day for the payment of revenue due from all the revenue paying estates in the district was 12th January 1936. The Collector had other duties to attend to and all are familiar with the facts that in Government departments things do not move swiftly, an idea expressed by the phrase 'red-tapism.' We accordingly hold that there is no substance in the defendants' case of estoppel.

7. Dr. Basak, the learned advocate for the appellant, has argued that the defendants cannot resist ejectment as their tenures have not been duly registered in the common register of tenures. He says, firstly, that tenures in respect of undivided1 shares of land cannot in law be registered in the common register and, secondly, that inasmuch as the applications for registration had been made beyond the time mentioned in Section 45 of Act 11, the registrations were ultra vires. In support of his first contention Dr. Basak has referred us to Sections 37, 38 and 39 of the Act and says that the intention of the Legislature was to prevent ejectment of a tenure holder from specific and defined portions of land in his possession, if he had registered his tenure. His tenure must accordingly comprise 16 annas share of specific lands. We do not see how the said Sections bring out the said intention. A tenure can in law comprise undivided parcels of land. All that is required is that the tenure must be held immediately under the proprietor or proprietors of the estate. If this condition be fulfilled the tenure-holder, provided he applies in time, is entitled to have his tenure registered in the common register, and if it is registered he is entitled to enjoy the protection given by the third exception mentioned in Section 37. We therefore overrule the first ground urged by Dr. Basak. The material facts bearing upon the second contention of Dr. Basak are tabulated below:

---------------------------------------------------------------------- 1. 2. 3. 4.Number of Date of creation Date of Date ofsuit and of tenure. application regis-appeal for regist- tration.ration of the same.----------------------------------------------------------------------T.S. 45 of 23-3-1860 (Ex. H.B. 18). 19-7-1802 Ex. MM-B200. 11-11-18621936 F.A. Do (Ex. H1-B23). Do Do Do 203 of 1937 (Def- 3-101844 (Ex. DD-B1). 30-10-1862.endant Mi- dnapore Do (Ex. DD1-B5). DoZemindary Co. Ltd). T.S. 46 of 21-11-1851 (Ex. DD2 B-9). Do1936 F.A. 3-10-1854 (Ex. DD3-B-14). Do204 of 1937(DefendantsFanibhusanBose andanother). 28-7-1862 (Ex. GGDo B 212 to 226)DoDo

32. Section 45, as it stands at present is the result of many amendments. The Section as it was on 4th May 1859, when Act 11 received the assent of the Governor-General, provided a time limit of three years from 4th May 1859 for the registration of tenures created before that date. With regard to tenures created after 4th May 1859, the time limit was three months from the date of the creation of the tenure. In 1862 however Section 45 was repealed and re-enacted in another form by Act 3 of that year. The Act received the assent of tile Governor-General on 21st April 1862. Section 2 of the said Act provided that applications for registration of tenures created before 4th May 1859 were to be made within three years of 21st April 1862, and that applications for registration of tenures created between 4th May 1859 and 21st April 1862 must be made within three months from 21st April 1862. According to the plain meaning of this Section applications for registration of all the tenures involved in the two suits had been made within time. Dr. Basak however argues that applications for registration of the tenures created by Ex. H and Ex. H-1 had already been barred when Act 3 of 1862 was passed. That Act, says he, cannot extend the period of limitation of a dead application. It can only extend the period of limitation of an application which was alive on 21st April 1862 according to the provisions of Section 45 as it originally stood. In support of his proposition he relies upon the observations of Sir Eichard Couch in Appaswami Odayar v. Subramania Odayar (1889) 12 Mad. 26 at p. 169 and of the Eight Hon'ble Mr. Ameer Ali in Khunnilal v. Gobind Krishen Narayan (1911) 33 All 356 at pages 101 and 102. This argument of Dr. Basak does not touch the tenures involved in Title Suit No. 46 of 1936. As a general proposition and in the absence of any expression of intention by the Legislature to the contrary it is well established that extension of the period of limitation of a suit of a particular kind by a new Act cannot revive a right of suit which had already been barred by the repealed Act. In the case before us we have, however, to construe Act 3 of 1862. The Preamble expresses the object of the legislation. Section 45 of the original Act is repealed by Section 1 and the words of Section 2 are clear and specific. Tenures created after 4th May 1859 are divided into two classes: those created before 21st April 1862 and those created after. The period of limitation for application for registration of both these classes is the same, namely three months, but the starting point is different. In respect of those created between 4th May 1859 and 21st April 1862, the starting point is expressly stated to be from 21st April 1862, and in respect of other tenures created after 21st April 1862, the starting point is to be the date of creation. In Section 2 the whole field is occupied and the Legislature has made its intention clear. We accordingly overrule Dr. Basak's second contention also and hold that the tenures created by Exs. H, H(1), DD, DD(1), DD(2) and DD(3) were duly registered.

33. This view of ours makes it necessary to consider whether the question of the validity of the registration can be raised in a Givil Court after a year of the registration. Mr. Sen Gupta contends that it cannot. He says that the right to contest the validity of registration is given only by Section 48 of the Act. He says that to such a suit Article 14 of Schedule 1 to the Limitation Act applies. In our judgment Section 48 contemplates a suit between the grantor and persons claiming under him on the one part and the grantee and his representatives on the other. A purchaser of an entire estate at a revenue sale does not claim through the old proprietor who may have created the tenure. He has a paramount right. The revenue sale may take place years after the grant. His rights are declared by the main provisions of Section 37. He who claims protection must bring his case within one of the exceptions. If he relies upon Exception 3 he will have to prove that the tenure had been duly registered, i.e. registered in accordance with the provisions of the Act dealing with registration of tenures. If the tenure has been registered either in the common or the special register, the presumption would be that it had been duly registered but the revenue purchaser cannot be precluded by any principle of law from showing that it was not duly registered. Suppose, a Collector had registered in the common register a tenure which was not held immediately under the proprietors on the misapprehension that if was so held. The fact of the registration cannot, in our judgment, prevent the ejectment; of the tenure-holder in a suit filed by the purchaser of the entire estate at a revenue sale if it be shown that the tenure-holder was in fact a mediate tenure-holder. We hold that such a purchaser could also show that the Collector had no jurisdiction by reason of the breach of Section 45 to register the tenure and that the act of registration was ultra vires. A similar view was taken by this Court in 39 Cal 35311 with respect to the Collector's powers under Sections 10 and 11 of the Act.

34. Two other points have been raised by Dr. Basak; one concerns the tenures involved in Appeal No. 203 of 1937 and the other the tenure created by Ex. DD(3) involved in Appeal No. 204 of 1937. The point raised in Appeal No. 203 is that so much of the lands of the tenures as are defined in col. 6 of the Common Register are protected. He refers to Section 40 of the Act, and says that the principle is that a revenue purchaser may know his exact position from the common register which would ordinarily be the only document available to him. Section 40 mentions the particulars which are to be given in an application for registration. The applicant is to state the said particulars 'so far as they are ascertainable.' If his application does not contain all the particulars mentioned therein it is for the Collector and Collector alone to ask him to fill up the gaps. But if the Collector does, in spite of defects in his application, register his tenure, the tenure itself is protected. The tenure-holder cannot be ejected by the purchaser at the revenue sale from any portion of the lands included in the tenure. The special point raised in Appeal No. 204 is that by Ex. DD-3 a tenure was created not only in respect of lands held by the proprietor Guru Charan Biswas qua proprietor, but also in respect of lands held by him in the right, i.e. in subordinate right. As the rent was a consolidated one for both classes of interests the Collector had no jurisdiction to register the tenure in view of the provisions of Section 38. This point was not raised by the plaintiff in the lower Court and the Bengalee document is not very clear. We accordingly do not allow Dr. Basak to raise this point.

35. We accordingly hold that the plaintiff cannot eject the defendants from the lands covered by their tenures created by Ex. H, H(1), DD, DD(1), DD(2) and DD(3). This leads us to the consideration of the last finding of the Subordinate Judge which raises a question of identity.

8. The appellant's case as presented before us is that the chit lands of mouza Sadipore, which lie in mouzas Sreerampore, Mirgoy alias Mirgy, Joyrarnpore, Kanai-nagar and the two chaks Ajlampore, 2.8 acres of lands included in Nazirpore, 6.55 acres in Proptapnagore and Char Muktarpore situated in the District Murshidabad are not included in the defendant company's patni taluks. The plaintiff-appellant claimed more in the lower Court but before us has given up his claim to the rest. Ex. YY(2), the revenue survey map of Sadipur-Ajlampore prepared in the year 1854 (Map No. 16), shows that these mouzas had chit lands in other mouzas. It was admitted in the lower Court and has been admitted before us that the said chit lands are the chit lands of village Sadipore. The chit lands are:Bighas. Cottas. Chittaks.22 13 0 in Sreerampore6 12 0 in Mirgy21 8 0 in Joyrampore36 3 0 in Kanainagore657 9 6 in AjlamporeChak (No. 1)984 12 7 in AjlamporeChak (No. 2)which was later oncalled Mahisakhola

36. Total 1728-17-13. The thak maps of Sreerampore, Mirgy, Joyrampcre, etc. also shows the chit lands of Sadipore in these villages (Maps Nos. 8, 10, 12, 9 and 5). The area of the villages Sadipur and Ajlampore proper was shown as bgs. 2636-6c. - 7 ch. The defendant company is in possession of these chit lands as parts of their patni taluks and the said lands are shown in the Cadastral Survey map and khatians. 'Whether chit lands of Sadipore and the other lands mentioned above are included in the company's patni taluks or not depends upon the construction of Ex. H and Ex. H(1). The two documents were executed on the same date and the terms are identical. Both parties say that the documents have not been correctly translated and so the original Bengalee documents were placed before us by both the parties. The translation of Ex. H(B-18) follows the original more closely than that of Ex. H(1). We accordingly proceed upon the said translation making necessary corrections at some places. The passage beginning from line 20 of p. 18 literally translated would run thus:

I having notified that I will grant patni settlement of my four annas share in nij mouza Sadipore and mouza Rajapore and mouza Ajlampore and mouza Hayetpara including Jannagore, four mouzas and one para included in the aforesaid Dihi including Khamars and of my i as. 8 gds. 3k. 5d. share in Khas Khamar Topla, the resumed Ohakran formerly of Thakur Das Eoy and others, and of my i as. 8 gds. 3k. 5d. share of Diar Kartickpore otherwise called Muktarpore which is beyond the limit of the river kharia (Kharia nadir Hoddapar).

37. The passage beginning from line 9 of page 19 ought to run thus:

By acquiring patni rights the said company shall enjoy for ever, generation after generation, all lands included in its grant-arajiat culturable, waste, rayati, khamar, orchard, jalkar, falkar, bankar beels, jheels, ditches, tanks, hats, ghats, land and water, tenanted lands and all arajiat, in which I have zamindary rights.

38. The documents Ex. H and Ex. H(1) make it clear that the grantors did not grant settlement of their shares in the whole touzi, but in four specified villages, of their shares in the resumed chakran Topla and their shares in Diar Kartickpore. With regard to Sadipore they indicated clearly that the grant covered their share in nij Mouza Sadipore. They did not qualify the other three mouzas by the word nij. We accordingly hold that the grantors did not include in the grants the chit lands of Mouza Sadipore in other villages. Mr. Sen Gupta however contends that the chit lands had passed to the grantee by the passage at line 9 of page 19 which we have re-translated above. He says that the word arajiat means chit lands. That is not the accepted meaning. In Wilson's Glossary (p. 31) the word Arazi has been defined thus:

Applied specially to detached portions of lands which are either rent free or have been recovered, from the retrocession of rivers.

39. The word arajiat occurs in the general and omnibus clause which is added to every Bengalee document. The grantors make it clear that the grantee is to have beels, jhils, etc., and all lands, etc., which are within the lands of which they had made the grant in the preceding part of the document. The said clause does not, in our judgment, extend the grant to other lands. The appropriate idea expressed by the word arajiat is the idea of accretion from river bed. From maps Nos. 17 and 18 the position of the lands can be ascertained. It was a compact block with the river Jellangi, which is another name for the river Kharia, as its western and northern boundaries. In our judgment the passage beginning from line 9 page 19 does not pass the chit lands of Sadipore but gives the grantee the right to the accretions gained from the river bed.

40. The defendant company's right to Char Muktarpore on the northern and western bank of river Kharia (Char Muktarpore in the District of Murshidabad shown in a part of map No. 2) depends upon the meaning of the word hoddapar. Map No. 14 is the revenue survey map of Diar Kartick-pore alias Char Muktarpur in District Nadia. It shows that part of river Kharia which is south of Chandipoor, Aditpore and Par Diar as its northern boundary, Nuttya danga, Char Cdoytopore, Chur Gorebhanga and Fulya as its eastern boundary. Narainpur as its southern boundary and Neahmutpore and Fajealnuggor as its western boundary. These are exactly the boundaries of Char Muktarpore which were given by the patnidar in his application for registration under Section 40, made shortly after the grant and which appear in col. 6 of the Common Eegister (B. 200), the word Kabya there being an obvious slip for Fulya. The Indigo Company shortly after the grant understood that it got Char Muktarpur on the side of the river Kharia, which lay in the District of Nadia. Besides, the words 'haddopar river Kharia' cannot in our judgment mean lands on both sides of the river. The words hodd, hadd, or hudd mean boundary, limit (Wilson's Glossary, p. 192) and the word par or para means river bank or bank. The grant therefore was of lands on one side oft the river. The word hoddapar was used for the purpose of excluding from the grant the bank of the river. We accordingly hold that the patni taluk does not include Char. Muktarpore in the District of Murshidabad. as shown in the settlement map.

41. The defendant company cannot also retain possession of 6.55 acres in Pratapnagai alias Protappur and 2.8 acres of Nazirpui as they are not included in the patni grants. These lands are not the chit lands of the remaining three mouzas namely Rajapur, Ajlampur, or Hayetpara. There is n(c) foundation for the finding of the Subordinate-Judge that the lands of Protapnagar as shown in the thak map within two parallel, red lines Ex. QQ(1) (Map No. 4), were later on made parts of the six mouzas Sadipur, Mirgay, etc. (A 212, lines 38 to 213, line 5). where the Judge gave a wrong reference; for, Ex. YY(2) should be substituted Ex. QQ(1). Cols. 5, 6 and 7 of the statement appended to Map No. 4 prepared in 1852 show that the said lands had been resumed by Government as part of the river bed. There is no evidence that the said lands were made parts of any of the said mouzas, between. 1852 and 1860 when Ex. H and Ex. H(1). were executed.

42. The last point which remains to be considered is to what reliefs the plaintiff is entitled. Before we define them it is necessary to notice that the patni taluks created by Ex. H and Ex. H(1) cover 8 annas share in the four villages, nij Sadipur, Ajlampore, Bajapur and Hayetpara including the para Jamnagore, this block of land goes by tha name of patni Mahal Sadipur in the Sherista of the defendant company. The Becord of Bights show that the company is in possession of 9as. 6gds. 2k. 2kr. (See for instance Khatians Nos. 8(1), 9 and 3 of Mouza Rajapore). Some of these Khatians, as for instance Exs. 26 and 30, have not been printed. Although the defendant company did not produce all its collection papers, though asked by the plaintiff to do so, so much as has been produced show that the company is collecting rent in 9as. 6gds. 2k. 2krs. share (see Ex. 19, B. 296). It is protected to the extent of 8 annas share only. The plaintiff must have joint possession to the extent of la. 6gds. 2k. 2krs. share of these four villages (Order 7, Rule 7, Civil P.C.)

43. In Suit No. 45 of 1936, the plaintiff is accordingly entitled to (a) declaration of his zemindary right to the lands in suit except pardiar, (b) joint possession with the defendant company in respect of la. 6gds. 2k. 2kr. of nij Mouza Sadipur, Mouzas Kaja-pore, Ajlampore, Hayetpara, including Jamnagore, that is in the lands described in Schedule 1 of the plaint, (c) Khas possession after ejecting the defendants from the chit lands of the above-mentioned mouzas, that is of the land mentioned in Schedule 4 of the plaint including the lands in Mouza Mirgay, bat excluding the lands in mouza pardiar. (d) Mesne profits in respect of the lands for which we have decreed either joint possession or khas possession from 29th March 1935 till the plaintiff gets possession or till the defendant company relinquishes possession after notice or up to three years from this date, whichever is earlier. Such mesne profits to be assessed by the lower Court and would proceed upon the basis of the rent which the defendant company has realized or could have realized for its tenants.

44. As the success has been divided it would have been proper to direct the parties to bear their costs throughout, but as the [greater part of the time occupied in the hearing had been taken up by the defendant in its attempt to substantiate the charge of fraud and other points and as the defendant has lost on all points except one, we direct that the plaintiff do recover half his costs of this Court and of the Court below from the defendant company. In Suit No. 46 of 1936 the plaintiff will have only a declaration of zemindary title in the suit lands and his other prayers are refused. In this case the parties will bear their respective costs throughout.

Narsing Rau, J.

45. I agree.

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