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Radha Gobinda Deb and anr. Vs. Girija Prasanna Mookherjee and anr. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1932Cal153,136Ind.Cas.129
AppellantRadha Gobinda Deb and anr.
RespondentGirija Prasanna Mookherjee and anr.
Cases Referred and Sheikh Mahommad Aga v. Jadunandan Jha
- .....constitutes a separate account property being revenue-paying estate no. 1246/1. it was sold at a revenue sale held by the collector of birbhum on 28th march 1924 and purchased thereat by defendant 1. the shebaiti right of the two plaintiffs extends to a half of the said share and that of defendant 2 to the other half.3. on 8th july 1925 the plaintiffs commenced this action on a plaint in which it was averred that there was bitter enmity and long-standing litigation between them and defendant 2; that estate no. 1246/1 having fallen into arrears for nonpayment of the revenue of the january kist of 1924 the estate was advertised for sale to be held on 27th march 1924; that on that date defendant 2 sent his officer nimai chandra ghose to suri, and the plaintiffs also sent their officer.....

1. This is an appeal by the plaintiffs from a decree dismissing their suit.

2. The plaintiffs are two brothers who, as well as their uncle defendant 2 are shebaits of their family idol Sree Radha Govinda Deb Thakur. One of the debutter properties of the idol is a 14 annas 2 gandas 2 karas share of an entire estate, No. 1246 of the Birbhum Collectorate, which goes by the name of Lot Kutubpur and includes thanadari lands. This share constitutes a separate account property being revenue-paying estate No. 1246/1. It was sold at a revenue sale held by the Collector of Birbhum on 28th March 1924 and purchased thereat by defendant 1. The shebaiti right of the two plaintiffs extends to a half of the said share and that of defendant 2 to the other half.

3. On 8th July 1925 the plaintiffs commenced this action on a plaint in which it was averred that there was bitter enmity and long-standing litigation between them and defendant 2; that estate No. 1246/1 having fallen into arrears for nonpayment of the revenue of the January kist of 1924 the estate was advertised for sale to be held on 27th March 1924; that on that date defendant 2 sent his officer Nimai Chandra Ghose to Suri, and the plaintiffs also sent their officer there with money for their share of the revenue; that Nimai Chandra Ghose gave out that he would pay the amount of revenue together with such penalty as the Collector might impose and also filed a petition for that purpose before the Collector; that the plaintiffs' officer, believing that the revenue would be so paid in and finding that a chalan for such deposit had bean passed made over the plaintiffs' share and the revenue to Nimai Chandra Ghose and came back;, and that thereafter Nimai Chandra Ghose having thus succeeded in misleading the plaintiffs' officer and sent him away, did not deposit the revenue and fraudulently caused the estato to be pub up for sale on the' next day and got it purchased for defendant 2 in the benami of the defendant 1. Certain irregularities and illegalities in the procedure adopted for the sale were also averred. It was also alleged that substantial loss was thus caused as property worth Rs. 50,000 had been sold up for Rupees 18,100 only. The prayers were for setting the sale aside on a declaration that it was illegal, ultra vires and without jurisdiction, and for recovery of possession of the estate together with mesne profits.

4. Defendant 1 in his written statement filed on 29th October 1925 denied that there were any irregularities or illegalities as alleged in the plaint, or that he was a benamidar for defendant 2, or that there was any substantial loss.

5. On 18th January 1927, that isto say, about a year and a half after the action was commenced, the plaintiffs made a petition for amendment of their plaint. This amendment was allowed in spite of the objection of defendant 1. The amendment in substance was that the plea of banami purchase was given up, and it introduced a statement to the effect that the plaintiffs had been subsequently informed that Nimai Chandra Ghose did not get the money which he was expecting in order to make the deposit and upon that ho entered into an arrangement with defendant 1 under which the latter agreed to purchase the property at the sale and then to reconvey the same to defendant 2 on receipt of Rs. 2,000 as his profits in the transaction. A prayer was added that the property should be reconvened to the idol on receipt of the said amount or such other amount as was considered proper.

6. In the additional written statement which defendant 1 filed on 31st March 1927, after the aforesaid amendment of the plaint, the said defendant denied the arrangement alleged.

7. Defendant 2 took no part in the suit,

8. Before dealing with the other questions that have arisen in this appeal it would be convenient, by way of clearing the ground, to dispose of a few questions of fact on which the findings of the Court below were against the appellants and the correctness of which findings has been assailed before us on their behalf.

9. The first question is whether the alteration in the averments made by the amendment of the plaint was made bona fide, the allegation as to a benami purchase by defendant 2 in the name of defendant 1 being abandoned and the story of a secret arrangement under which defendant 1 to reconvey the property to defendant 2 for a profit of Rs. 2,000 being set up. The plaintiff Kshirode Mohan Ghose Moulik stated in his evidence;

The statements I have made in para. 16 of the plaint (meaning the allegations as to the benami purchase) I got from Rakhal Banerji, Aramukhtear of Asit (meaning defendant 2). That Rakhal Banerji cannot be found now in Suri, I do not know his whereabouts , . . . I got the information about the statements made in para. 4 of the amendment petition from Rakhal Bibu (meaning the story of the secret arrangement)towards the beginning of January 1927 . ... I have no good feelings with any men of Asit. I have no faith in Asit. I have no faith in his karmacharis. ... I cited Ashu as witness as Rakhal told me he was present at the time of sale. I did not consult Ashu about what he knows. I cited Nimai and Santiram as witnesses as Bakhal told me that they were present at the time of sale. I did not consult them before, but I expected that they would speak the truth as their masters had been disappointed. I sent for Rakhal also at the beginning of January 1927 to know what the witnesses would say. I called him at Kshitish's house. Then he told me the real state of matters as stated in my amendment petition. I did not take Rakhal to any body for repeating his second statements (meaning the story of the secret arrangement). I had no reason to disbelieve Rakhal Babu and so I got the plaint amended.

10. In our opinion, it is perfectly incredible that the witness could have, without taking any precautions to fix Rakhal to his second statements when ha had once gone back upon his first statements, and without assuring himself that the officers of his bitter enemy who were all concerned in the fraud would support his case as witnesses on his behalf, could have thought of getting such an important alteration made in his ease. Such a position, in our judgment, is unthinkable. We entirely agree with the con-elusion of the Subordinate Judge on the point and hold that, finding in the course of the year and a half that had elapsed that defendant 1 had secured unimpeachable documentary evidence (which has subsequently been produced by him in the case), showing that the purchase had been made by that defendant on his own behalf and with his own money procured by loan and not on behalf of defendant 2, the plaintiff joined hands with defendant 2 to make a common cause and set up the story of a secret arrangement in order to recover the property.

11. Next, as regards the truth of the story itself. The story rests upon the evidence of P. W. 1 Nimai Chandra Ghose, the Sirdar Dewan of defendant 2, P. W. 2 Santiram Mukherji another officer of defendant 2, and P. W. 3 Ashutosh Chatterji, a man of inconsiderable position and a relation of P. W. 2. A close scrutiny of the evidence of these three witnesses discloses wide divergence as to the details, and there are clear and irreconcilable contradictions as regards the time, the place and other essential particulars of the transaction which they profosa to speak to. Besides, it is improbable to the last degree that such a secret arrangement with such far-reaching consequences could be entered into by these officers of defendant 2 on their own responsibility and without any reference to their master or that no greater precaution would be taken by them to guard against defendant 1 resiling from it. Defendant 2, on whose behalf and for whose benefit this agreement is said to have been entered into, has not ventured to come forward; his officers have made barefaced admissions as having been party to a serious fraud intended to secure for defendant 2 an advantage over the plaintiffs by depriving them of their property. It is not suggested that during the long period that elapsed since the sale and till the amendment was applied for, there was any demand for specific performance of the agreement, or any tender of the amount of Rs. 2,000; and indeed it is admitted that there have been no such steps taken. In support of the story of this secret arrangement, it has been attempted to be shown that the officers of defendant 2 were scaring away intending bidders in order to help defendant 1 to make the purchase, but we are not satisfied that any such thing was really done by them. It is utterly incredible that there was such an arrangement and, indeed, everything points to the falsity of the story so put forward. On the other hand the evidence of defendant 1 himself and of such witnesses of his as D. W. 4 Baidya Nath Roy, D. W. 5 Atlanta Lal Ghosal and I). W. 6 Debendra Chandra Ghosal--witnesses who appear to us to be perfectly reliable--have given a clear and convincing account as to how the purchase was made. On that evidence we are satisfied that it was a bona fide purchase made by defendant 1 for his own benefit. The evidence, oral and documentary, as regards the source of the purchase money need not be discussed as the plea of benami has been abandoned, but we may say, once for all, that we can see nothing suspicious anywhere in that evidence.

12. Then arises the question whether the plaintiffs' story of their having sent their share of the revenue through an officer of theirs and that officer having been bluffed by defendant 2's officer Nimai Chandra Ghose, with the assurance that the revenue would be duly put in by him, is true. In view of the fact that the allegation of a benami purchase was withdrawn, and in view of our finding that defendant 1 was a bona fide purchaser, the question has lost all its importance. But it is as well that we should record our opinion as to the truth or otherwise of the story as it has been discussed before us at considerable length. The story is given by P. W. 1 Ninaai Chandra Ghose in these words:

Plaintiffs' man, Ramendra Prosad Ghose Hazra, came that day to the Suri Collectorate. He paid me Rs. 500 (the amount of the revenue payable by them, for deposit and then went away between 12 noon and 1 p. m.

13. P. W. 4 Ramendra Prosad Ghose Hazra, also deposed to the same effect and also deposed that subsequently Nimai paid him back the said sum of Rs. 500. The plaintiff Kshirode Mohan Ghose Moulik, P. W. 11, has also given the same story. But no documentary evidence, showing that Rs. 1,000 had in fact been sent through Ramendra for deposit of the revenue of this estate and also of another estate Madanpur or that Rs. 500 was received back subsequently, has been produced. The said plaintiff when pressed in cross-examination about his account books, said that they were missing, that the man who used to write them had absconded with them and gave other answers which are highly unconvincing and unsatisfactory. It would be surprisingly strange if in the face of so much ill-feeling and enmity between the parties Ramendra, if he had been really sent with the money, would not have taken some precautions for ensuring that the money would be put in, but would be satisfied with an assurance that Santiram would be coming with the amount due on account of defendant 2's share. It is important to point out that in the appeal before the Commissioner for setting aside the sale (Ex. 17) the payment of Rs. 500 by Ramendra to Nimai was not alleged. It is interesting to note that long before the institution of the present suit the plaintiffs and defendant 2 filed a petition (Ex. N) on 15th November 1924 objecting to the mutation of defendant l's name as purchaser of the estate and there they stated:

That disputes having arisen amongst the co-eharers of the mehal, the revenue of the Collectorate was not deposited in time .... that the disputes amongst the objectors have now been settled. They will therefore institute a case in the highest Court for setting aside the sale of the mehal sold.

14. It also appears that in a plaint which defendant 2 and another person filed in 1927 (Ex. U) for setting aside the revenue sale held on the 25th June 1925 in respect of another mehal Paharpur, in which the present plaintiffs are their cosharers, it was alleged that an officer of the present plaintiffs, in collusion with the purchaser, scared away intending bidders by assuring them that the revenue would be deposited, and ultimately did not put it in with the object of depriving defendant 2 of his property. In these circumstances and for the reasons given above, we think we ought to hold that the story is not true.

15. What has been said above will give an idea as to our view of the facts of the case: shortly put, it is this: that for some reason or other the proprietors were not diligent or it may be that each was expecting that the other would pay, or it may again be that they were honestly expecting to be able to pay, but at the last moment the requisite amount was not available. We proceed next to consider the other points that have been urged in the appeal.

16. The main contention of the appellants is that the sale was without jurisdiction inasmuch as there were no arrears. In the Court below two documents were produced on behalf of the plaintiffs (Exs. 14 and 15) as affording foundation for the argument that there were no arrears. The Subordinate Judge was of opinion that these documents did not relate to the estate in question and that, even if they did, Ex. 14 would show that on the 12th January 1924, on which date the arrears for which the sale took place were payable, the revenue for the months of As win, Kartik and Aghrayan was in arrears. The Subordinate Judge was unable to connect the documents with the estate in question because of the difference in the amount of revenue and also because he thought that Taluk Fateh Chand in Parganna Kutubpur and not lot Kutubpur was mentioned in them. The difference in the amount of the revenue may not unreasonably be explained by the fact that the estate subsequently lost some of its lands, of which fact however there is no evidence. And there is evidence that the word 'Fatehchand' may be read also as 'Fatehpur': vide P. W. 13. The conclusion of the Subordinate Judge on the question of identity therefore does not rest on any very sure foundation. But it is needless to pursue the matter' further because the appellants themselves have resiled from the position they took in the Court below and no longer contend that the documents relate to the estate in question. They have, on the other hand, relied on the Subordinate Judge's conclusion that the documents relate to some other mehal; presumably because they see that if the documents be held to relate to the estate in question, they would, as pointed out by the Subordinate Judge, show that there were arrears due. The appellants have pressed before us the other contention that they urged in the Court below on the authority of the observations of Chatterjea, J., in Amrita Lal Roy v. Secy. of State [1918] 46 I.C. 447 and have supplemented it by reference to the recent decision of the Judicial Committee in the case of Mt. Saraswati Bahuria v. Surja Narain Choudhuri . That contention is that as the sale was for recovery of revenue due up to Pous (i.e. December-January) talab (demand), the amount, though unpaid, was not an arrear of revenue within the meaning of Section 2, Act 11 of 1859, until 1st February, and for payment of such arrears the last date fixed by the Board of Revenue under Section 3 of the Act was 23th March, and consequently there were no arrears on the date fixed for the sale. The decisions upon which the appellants have relied are entirely distinguishable on the facts. In Amrita Lal Roys case [1918] 46 I.C. 447 the observations of Chatterjea, J., were based upon the view that he took of the facts, viz, that upon the documents produced in the case and in the absence of the kistbundi governing the estate, the expression ' January kist ' or ' January talab ' was to be taken as meaning the date contemplated in Section 2 of the Act. Their Lordships of the Judicial Committee in Mt. Saraswati Bahuria's case also did not intend to lay down any new law: their Lordships, on examining the materials on the record, came to the conclusion that 'the revenue was payable in four instalments viz , the 7th June, the 28th September, the 12th January and the 28th March' that the revenue payable on the 28th March became an arrear on the 1st April, of which the last date fixed for payment under Section 3 of the Act by the Board of Revenue was the 7th June and so the sale on the 6th June was without jurisdiction. In the present case, a careful perusal of the papers of the Collectorate, and especially the notices Exs. 13 (a) to 13 (f) and the Arrear List Ex. 18 distinctly mention 12th January 1924 as the last day for the payment of the revenue which in our opinion can be nothing else than the last date contemplated by Section 3 of the Act and is not the date of the instalments according to the settlement and kistbundi of the mehal as contemplated in Section 2 of the Act. The entries in the touzi Ledgers (Ex. 16 series) upon which the appellants strongly rely, do not in our opinion, militate against this view. It is quite true that the expression 'Pous talab' is used in the documents. It should however be borne in mind that since the proprietor is quite safe so long as he pays the revenue by the last date for payment fixed under Section 3 of the Act, the earlier date on which it was payable under the settlement and kistbundi of the mehal lost in course of time all its importance, and was lost sight of in practice and the last data fixed for payment under Section 3 became all important. In our judgment, the expression 'Pous talab' used in the documents is not the installment for Pous according to the settlement and kistbundi of the mehal, but the instalment for which the last date of payment as fixed under Section 3 of the Act falls in Pous, and is loosely used to mean the instalments payable by the 12th January as so fixed. The books of the Collectorate showed the estate in arrears and the relevant entries therein may be presumed to be correct under Section 114 Evidence Act having regard to illustrations (e) and (f) [Mahommad Solaiman v. Birendra Chandra Singh A.I.R. 1922 P.C. 405] and such books must be examined in order to arrive at a finding as to whether there were arrears or not; Jagadiswar Narain v. Muhammad Hazig Hussain A.I.R 1923 P.C. 126.

17. In the judgment of their Lordships in Saraswati Bahuria's case the notice issued in that case under Section 7 of the Act is set out and in that notice it was not the last day fixed for payment of the arrears under Section 3 that was mentioned but on the other hand it was stated that

Rupees 45-7-3 is due on account of arrears of revenue for the period ending the 21st Chait 1328 corresponding to 28th March 1919.

18. These words, their Lordships held, would indicate that the date mentioned was the date of the settlement and kistbundi contemplated by Section 2 of the Act. Their Lordships also considered the other materials on the record and they also supported that conclusion. Of course the learned Judges of the Patna High Court from whose decision the appeal was taken had held that as there was no necessity to state in a notice under Section 7 the date contemplated by Section 2, the date given in the notice should be taken as the date fixed for payment under Section 3: [see Suraj Narain v. Saraswati Bahuria A.I.R. 1925 Pat. 750] but their Lordships of the Judicial Committee did not take that view. The notices in the present case are entirely different. This contention of the appellants therefore must be overruled.

19. The Collector's jurisdiction to hold the sale has also been impugned upon several other grounds to which reference will now be made. Firstly, it has been argued that the estate consisted of malguzari lands and of thanadari lands and that for arrears due on account of revenue for malguzari lands and on account of demands for thanadari lands, one sale could not be held. So far as this contention is concerned, it has no substance because although in the Collectorate ledgers (Exs. 16 to 16c) separate accounts in respect of the said two items are kept, the A register (Ex. 12) and the D Register (Ex. 8) show that the thanadari lands have been amalgamated with the malguzari lands of the mehal and they together form one estate as defined in Section 1, Act 7 of 1868 and that the demands on the two heads have been amalgamated to form a total demand for the estate. Secondly, it has been contended that there was no mehal named Huda Kutubur Fatehpur which was the name given in the notices, but that the real name of the mehal was Lot Kutubpur in Pargana Fatehpur. There is evidence that the Mehal is known by the former name, that is the name which it bears in most of the Collectorate papers. That again is the name which defendant 2 gave as of this mehal in Ex. 2. Moreover the number of the estate wa3 also given in each of the Notices, and there was not the least chance of anybody being misled as to its identity, nor indeed is there any evidence that anybody was in fact misled. Thirdly, it has been argued that whereas the estate belongs to the idol of whom the plaintiffs and defendant 2 are only shebaits, they have been described in the papers as proprietors. This, if at all, is an irregularity of no substance. Fourthly, it has been contended the sale was without jurisdiction because the Collector's order on the petition for exemption made by Nirnai Chandra Ghose was illegal, being a conditional and not an absolute order of exemption; and the decision of the Judicial Committee in the case of Lala Gouri Shankar Lal v. Janki Pershad [1890] 17 Cal. 809 has been cited in support of the contention. It is difficult to understand of what use this contention is to the appellants because it is not their case that the order had the effect of exempting the estate from sale. Their Lordships in that case held that an order under Section 18, Act 11 of 1859, for exempting an estate from sale for arrears of revenue must be an absolute exemption, and not an order having effect as an exemption or not according to what may happen or be done afterwards, and that it must not depend on an act which may or may not be performed. The Collector's order in the present ease was:

Exempted on payment of all arrears and penalty Rs. 150 as a special case.

20. It was not an absolute order, but it only comes to this: that there was no order under Section 18 of the Act exempting the estate from sale. How that would vitiate a sale when it was held, the arrears not having been paid in the meantime, it is not possible to imagine. Fifthly, it has been contended that the adjournment of the sale to the next day was in contravention of Section 20 of the Act and so the sale held was illegal. The order of the Collector as regards this adjournments was in these words:

To-day was fixed for revenue sale. Four sales were held out of 21 in the sale list. The proceedings could not be finished till 5 p. m. It was brought to my notice that in the case of T. No. 1246-1 Huda Kutubpur Fatehpure with polios (? lands) the defaulting proprietor who was allowed exemption under Section 18, Act 11 of 1859, on payment of all arrears and penalty, could not deposit the amount upto 5 p. m. All the bidders have now left the Court. The sale is therefore adjourned till tomorrow (noon) 23th March 1924.

21. It has been said that Section 20 authorizes the Collector to adjourn a sale when he is unable from sickness, from the occurrence of a holiday or from any other cause, to commence the sale on the day-fixed or, if having commenced it he is unable from any cause to complete it; and that the sale in the present case was adjourned to the next day on the ground that the Collector was unable to commence it on the date fixed because he had to wait till 5 P. M. for the deposit to be made which was not a cause ejusdem generis with sickness or holiday and so the adjournment was illegal. In our opinion this argument is based upon an erroneous interpretation of the section. The sale spoken of in the section is the sale proceedings of all the estates that are to be sold on the particular day. That sale had commenced, and 4 out of the 21 estates were sold. The other estates could not be sold because it was already 5 p. m. and all the bidders had [left, and the result was that the sale {which had been commenced could not be completed. To this case the latter part of the provision quoted applies, and an adjournment in such circumstances may be granted by the Collector when 'from any cause' he is unable to complete the (proceedings The expression 'any other cause' in the former part of the provision means a cause ejusdem generis, but the expression any cause' which occurs in the latter part need not be so. Sixthly, some argument have been advanced to show that the notices under Sections 6 and 7 of the Act were not duly served. To this argument Section 8, Act 7 of 1868, affords a complete answer. It is true that there is a note in the sale list showing that the notice under Section 7 was not duly published as regards the mehal in question and there is a decision, of this Court in the case of Rajrani Dasi v. Ganesh Prasad Mahapatra [1910] 37 Cal. 407 which says that Section 8, Act 7 (B. C.) of 1868, would not debar one from proving that the notice had been served in a wrong mehal in contravention of the Act. But non-service of a notice under Section 7 of the Act, which is meant to forbid raiyats and under tenants to pay rent to the defaulting proprietor, has no bearing on the question of, and cannot affect, the price fetched at the sale and is consequently immaterial in the present case., Gobind Chunder v. Shirajunnessa [1883] 13 C.L.R. 1. Mahommad Azahar v. Raj Chunder [1894] 21 Cal. 354 Azimuddin Patwari v. Secy. of State, [1894] 21 Cal. 360 and Sheikh Mahommad Aga v. Jadunandan Jha [1905] 10 C.W.N. 137.

22. Two other objections of comparatively-minor importance were also urged. The objection that 30 days did not elapse from the date of publication in the Calcutta Gazette does not even bear examination in view of the provisions contained in Section 6 of the Revenue Sale Law. There is also no substance in the contention based upon the fact that the order for adjournment of the sale, to which reference has been made above, was signed by the Collector at the Lees Club and not at the Collector's office. The signature at the place mentioned did not affect the jurisdiction of the Collector nor did it in any way affect the sale that ultimately took place.

23. In conclusion it is necessary to state, as regards the value of the property sold, that though the Subordinate Judge has held than its fair price is Rs. 31,000, his calculations are based upon figures that are not correct, and that on a proper calculation on the basis of the figures to be found in the Valuation Statement under the Cess Act (Ex. 11) the value would work out at somewhere about Rs. 22,000. We have not been able to find any materials on which we may hold that the price fetched at the sale was utterly inadequate or that the deficiency that there was due to any irregularity or illegality.

24. The result, in our opinion, is that this appeal fails. It is accordingly dismissed with costs.

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