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Bhupendra Chandra Deb and anr. Vs. Sm. Rash Mani Gope W/O Balaram Gope and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1945Cal477
AppellantBhupendra Chandra Deb and anr.
RespondentSm. Rash Mani Gope W/O Balaram Gope and ors.
Cases ReferredShiba Das v. Hem Chandra
Excerpt:
- .....at comilla being title suit no. 97 of 1935 against the three purchasers for setting aside the revenue sale on account of various irregularities resulting in substantial loss to-the defaulting proprietors. this suit was dismissed by the subordinate judge on 8th july 1936. there was an appeal preferred against this decision by balaram and ramkanai to this court and pending the hearing of this appeal the separate account was again put up to sale on 25th september 1936 for default in the payment of government revenue and was purchased by upendra chandra deb, the original defendant 1 in this suit. the appeal filed against the judgment in title suit no. 97 of 1935 was eventually dismissed for default and the three plaintiffs who purchased this separate account from aswini brought the.....
Judgment:
ORDER

B.K. Mukherjea, J.

1. This appeal is on behalf of the heirs and legal representatives of defendant 1 and the suit out of which it arises was commenced by the plaintiffs for setting aside the sale of a share of a revenue paying estate, held under the provisions of Act 11 of 1859. The property sold is a separate account, being separate account No, 6 of Taluk Shivaganga Sen, bearing Touzi NO. 6375 of the Mymensingh Collectorate. This separate account represents a three annas odd gandas share of the entire touzi, and the revenue assessed on it is Rs. 85-12-0 a year which is payable in four instalments, in the months of January, March, June and September every year. The property belonged admittedly to Gobinda Sen and others, In execution of a mortgage decree against the proprietors, it was put up to sale on 19th May 1934 and purchased jointly by four brothers, to wit, Balaram, Earn Kanai, Bhuban and Niranjan Gope and the daughters of another pre-deceased brother named Brindaban. The mortgage sale was confirmed on 7th July 1934 and on 26th September 1934, the property was sold for arrears of revenue and purchased by one Aswini Kumar Choudhury. On 2nd October 1934, Aswini transferred his rights by a kobala to the three plaintiffs of this suit of whom the first two are the wives of Balaram and Ramkanai respectively. In 1935, Bhuban and Niranjan, the other two brothers instituted a suit in the Court of the Second Subordinate Judge at Comilla being Title Suit No. 97 of 1935 against the three purchasers for setting aside the revenue sale on account of various irregularities resulting in substantial loss to-the defaulting proprietors. This suit was dismissed by the Subordinate Judge on 8th July 1936. There was an appeal preferred against this decision by Balaram and Ramkanai to this Court and pending the hearing of this appeal the separate account was again put up to sale on 25th September 1936 for default in the payment of Government revenue and was purchased by Upendra Chandra Deb, the original defendant 1 in this suit. The appeal filed against the judgment in Title Suit No. 97 of 1935 was eventually dismissed for default and the three plaintiffs who purchased this separate account from Aswini brought the present suit for setting aside the revenue sale held on 25th September 1936. The allegations in the plaint in substance were that the notification under Section 6, Revenue Sale Law was defective in that it did not contain a proper description of the property and that although, the entire lands of the touzi were situated within the district of Tipperah this notification was affixed in the Court of the District Judge at Mymensingh, The notification issued under Section 7 of Act 11 of 1859 was also stated to be defective in material particulars and not served at all in accordance with the requirements of the section. By reason of these irregularities, it was said, the property which was worth over Rs. 6000 was sold for the grossly inadequate sum of Rs. 65 only. The further allegations in the plaint were that one Prakash Chandra Kar who was made defendant 2 in the suit was a trusted agent of the plaintiffs and was entrusted with the sum of Rs. 95 by the husband of plaintiff 1 for the purpose of depositing the revenue that fell due in respect of the separate account for the March and June Kists of 1936. Prakash paid the instalment for March only and deliberately defaulted in the payment of the revenue for the June Kist in collusion with Balaram and Ramkanai who were made defendants 3 and 4 in the suit. It was alleged that the purchaser (defendant 1) was a mere benamdar of these defendants. On all these allegations the plaintiffs prayed that the revenue sale might be set aside.

2. The suit was contested by defendant 1 alone who in his written statement traversed the material allegations of the plaintiff and con-tended inter alia that he purchased the property with his own money and was neither a benamdar of the other defendants nor acted in collusion with them. It was averred that there was no defect in the notifications issued under Sections 6 and 7 of Act 11 of 1859 and that they were duly and properly served in accordance with the provisions of law. The plaintiffs and their predecessors, it was alleged, were habitual defaulters regarding payment of Government revenue and even on a previous occasion this property was sold for Rs. 45 only. The trial Court found in favour of the plaintiffs on all the points and decreed the suit. The heirs of defendant 1 have come up on appeal to this Court.

3. The first and the main point for our consideration is whether the revenue sale was held in an illegal manner contrary to the provisions of Act 11 of 1859 by reason of which the plaintiffs sustained substantial injury. If these facts are not established by evidence the sale cannot be annulled under Sections 33, Revenue Sale Law. The Subordinate Judge has found that the notification under Section 6 of the Act was defective in material particulars. The notification did not state that the entire mahal was situated within the district of Tippera and that no part of it was within the district of Mymensingh. It did not mention the names of all the proprietors and did not specify the shares that were excluded from sale. Furthermore, the service of this notification was not in compliance with the provisions of Act 11 of 1859 and as the entire property was situated within the District of Tippera a copy of the notification under Section 6 should have been affixed in the Court of the District Judge of Tippera and not in the Court of the District Judge of Mymensingh. As regards the notification under Section 7 of Act 11 of 1859, the finding of the learned Subordinate Judge is that the description of the property in some of these notifications was erroneous and misleading and moreover the notifications were not served in the locality at all. The learned Subordinate Judge further held on evidence that the value of the property was much above us. 5000 and by reason of the irregularities mentioned above it was sold for an inadequate price of Rs. 65 only which could not but result in substantial loss to the plaintiffs. This last finding has not been challenged before us in this appeal and it is not disputed that the plaintiffs have sustained substantial loss by reason of the sale. Hence if it can be proved that the inadequacy of price was the result of any irregularity or non-compliance with the provisions of the Act the sale undoubtedly should be set aside. We will first consider what were the irregularities, if any, with regard to the notifications under Sections 6 and 7 of Act 11 of 1859. Now Section 6 runs as follows:

The Collector or other officer duly authorised to hold sales under this Act shall as soon as possible after the latest day of payment fixed in the manner prescribed in Sections 3 of this Act, issue notifications in the language of the district to be affixed in his own office and in the Court of the Judge of the District, specifying the estates or shares of estates which will be sold as aforesaid, and the day on. which the sale of the same will commence, which day shall not be less than 30 clear days from the date of affixing the notification in the office of the Colleotor or other officer aforesaid.

4. Thus, the notification is to specify the estate or shares of the estate which will be sold and a copy of the notification will have to be affixed in the office of the Collector who is authorised to hold the sale and another copy is to be affixed in the Court of the Judge of that district. The date of the sale again shall not be less than 30 clear days from the date of affixing the notification in the office of the Collector and the Court of the District Judge. The notification issued under Section 6 of Act 11 of 1859, in the present case mentioned the number of the touzi and the name of the mahal and also showed the total revenue payable in respect of the entire touzi. It then stated that the entire mahal was not to be sold and what was to be sold was No. 6 Kbarija Hissa which represented 3 annas 1 ganda 2 kara and 2 kranti share of the entire touzi, carrying an annual revenue of Rs. 85-12-0 of which the proprietors were Shantamoyee Gupta and others. The amount of revenue actually in arrears was also specified and it was further stated that the other parts of the touzi were not to be sold. As the Judicial Committee observed in Ravaneshwar Prasad Singh v. Baijnath Ram Goenka (15) 2 A. I. R. 1915 P. C. at p. 85:

Act 11 of 1859 is a stringent enactment for the realization of arrears of revenue; at the same time it provides certain safeguards for the protection of the interests of the defaulter so that he may not be unnecessarily prejudiced. Among these safeguards are the provisions of Sections 5 and 6 for the issue of notifications of sales specifying the properties to be sold, and their due publication in accordance with, the law. An exact complianoe with the requirements, of the Act is considered so important by the Government that the Board of Revenue has issued special rules, with forms of notification necessary in the case of estates or shares of estates advertised for sale. The object of the law requiring specification of the properties to be sold, as well as of the board's rules, is clearly to enable likely purchasers among the public to know exactly what is going to be sold, and to ensure thereby reasonable competition. When an estate is advertised for sale it is not difficult to specify it; in the case of shares of estates the work of specification requires care and attention. No hard and fast rule can be laid down with regard to its sufficiency, for it must vary according to the facts of each particular case.... What has to be considered is whether, haying regard to all the circumstanoes, the specification was sufficiently definite and clear to induce likely buyers to appear and bid at the sale. It is not enough that they may go and obtain the requisite information from the Collector's office. In their Lordships' opinion the particulars in the notice should be sufficient in themselves to tell purchasers what they are invited to bid for.

Judging by the test laid down above we are. unable to hold that the notification issued in this case under Section 6 of Act 11 of 1859 was insufficient or defective. In the first place, there is nothing in the provisions of Section 6 or in the forms prescribed by the board which requires that the district in which the touzi is situated should be specified. A touzi may be situated in more districts than one, and the lands may lie entirely outside the particular district on the collectorate roll of which the touzi is borne. It is sufficient compliance with the Act if the name of the mahal and the number of the touzi are specified. In the second place, we do not agree with the learned Subordinate Judge that the notification should have specified the other shares which were excluded from sale. It is true, as the Privy Council pointed out, that in the case of a share of an estate the work of specification requires care and attention but it is to be seen that in the present case the notification under Section 6 specified the exact share to be sold. It was separate account NO. 6 of touzi NO. 6375 representing an undivided 3 annas 1 ganda 2 kara and 2 kranti share of the whole touzi. Had the share sold been a residuary share it might have been necessary to mention the shares which were actually excluded for it would have been difficult otherwise for the intending purchasers to know what was being advertised for sale. In Ravaneshwar Prasad Singh v. Baijnath Ram Goenka (15) 2 A. I. R. 1915 P. C., the description of the property given in the notification was as follows: 'Ijmali share which cannot be specified excluding the separate account numbers' and this was held to be insufficient; but where the exact fractional share is specified with the proportionate jama and it is further stated that the other parts of the property will not be sold we cannot say that the description of the property is in any sense insufficient or misleading. Thirdly, we do not think that non-mention of the names of all the proprietors was an irregularity in the notification. The section itself does not require that the name of the defaulting proprietor should be mentioned in the notification. In Secretary of State v. Rashbihari Mukherji ('83) 9 Cal. 591, the name of only one of several proprietors was mentioned and it was held not to be an irregularity. The same view was taken in Shamakant Lal v. Kashinath ('26) 13 A. I. R. 1926 Pat. where also there was a large number of proprietors and it was held sufficient if the name of anyone of them was mentioned. It is true that misstatement of the names of all or any of the proprietors which may have the effect of misleading the bidders will be considered to be an irregularity: Rajrani Dassi v. Ganesh Prosad ('10) 37 Cal. 407 : 5 I. C. 650 but there is no such suggestion in the present case. The decision in Shiba Das v. Hem Chandra ('37) 24 A. I. R. 1937 Cal. 473 upon which reliance was placed by the Court below is in our opinion distinguishable. In that case there was an omission to state in the notification that the property sold was a residuary estate and this taken with the restricted description of the names-of the owners as 'Shiva Das Chakravarty and others' was construed to be a mis description which was calculated to mislead bidders. There was no such misleading statement in the present ease.

5. We now come to the question whether it was a violation of the provisions of Section 6, Revenue Sale Law to affix a copy of the notification in the Court of the District Judge at Mymensingh although no part of the touzi was situated within the jurisdiction of that district. Section 6 provides that notifications are to be issued by the Collector who is authorised to hold the sale in the language of the district one of which is to be affixed in his own office and the other in the Court of the Judge of that district. The 'district' here obviously refers to the district of the Collector who issues the notice and is authorised to hold the sale. Only one district is referred to in the section in the language of which the notification is to be issued and it cannot be the intention of the Legislature that if the lands are wholly outside the district of the Collector who is authorised to hold the sale, notice is to be issued in the language of the other district where the touzi is situated and that such notification is to be affixed in the Court of the Judge of that district. Mr. Chakravarty referred us in this connexion to the provisions of Sections 5 and 7, Revenue Sale Law. In both these sections there are specific provisions for the service of the notification in the Court of the Judge or Munsif within whose jurisdiction the lands advertised lie. Section 6, it seems, omits this provision and, in our opinion, this omission was a deliberate one. The notification under Section 5 is not a notice for the sale of an estate for arrears of revenue on a specified date or hour. It is in the nature of a warning to all people interested in the estate and not merely to the defaulter that the mahal is liable to be sold in the event of non-payment of revenue within the time fixed. The object of the notification under Section 7 of the Act, again is to protect the tenants and prevent them from' paying rents to defaulting proprietors after the latest day of payment. The Legislature expressly laid down that the notifications tinder Sections 5 and 7 should not merely be affixed in the office of the Collector but that they should be served in the locality also. The object of Section 6, on the other hand, is quits different. It is to give reasonable publicity to the sale and to enable the intending purchasers to know exactly what is going to be sold. It may be that the Legislature acted on the idea that intending bidders for a touzi would seek information only in the offices of the Collector or Judge of the District which bears the touzi on its roll and not in other places. Anyway, the language of the section is perfectly clear and we are bound to hold that the provisions of the section are complied with by affixing the notification in the Court of the Judge of the District where the Collector is entitled to hold the sale. The result, therefore, is that in our opinion, there is no irregularity regarding the contents of the notification issued under Section 6 of Act 11 of 1859, or the mode of its service.

6. We now come to the notification under Section 7 of the Act. We may accept the finding of the learned Subordinate Judge that one of the notices issued under Section 7 in the present case was served in the wrong place with a misleading description of the property. In this notice the lands were described as situated in Mouza Dobajail within thana Bajitpur, District Mymensingh. As a matter of fact, there is no Mouza Dobajail within the Mymensingh District appertaining to thana Bajitpur and the learned Subordinate Judge might not be wrong in holding that this notice was never served at all in Mouza Dobajail which lies within police station Sarail in the District of Tippera. This is undoubtedly an irregularity and the question is whether the sale was in any way affected by this irregularity. The notification under Section 7 of Act 11 of 1859, is not to give proprietors notice of the fact that an estate is to be put up to sale. It is intended solely for the protection of raiyats and under raiyats and to prevent them from paying to the defaulters any rent after the latest date of payment. Ordinarily, therefore, any omission of a notification under Section 7, [Revenue Sale Law, is not calculated to affect bidders of the property and if such omission is to be relied upon as an irregularity for purposes of setting aside a revenue sale under Section 33 of the Act, it must be proved affirmatively that the irregularity had really the effect of misleading bidders and caused substantial loss to the proprietors. Mr. Chakravarty relies in this connexion upon the evidence of one Sabdar Ali, who is witness 6 for the plaintiffs. All that he says is that if the sale notices had been served in the mahal he might in combination with other tenants have tried to purchase the property. He admits that he did not make any attempt to purchase this property on various occasions in the past when it was put up for sale and it is extremely doubtful whether he had the means of purchasing it at all. We cannot say, on the evidence on the record, that the irregularities in connexion with the notification under Section 7 of Act 11 of 1859, in any way affected the sale. Our conclusion therefore is that the evidence adduced by the plaintiffs is insufficient to show that the sale was held in contravention of the provisions of Act 11 of 1859, resulting in substantial loss to them. The sale cannot therefore be set aside even though the property was sold at an inadequate price.

7. The only other point that requires consideration is whether the sale was brought about by fraud of defendant 2 acting in collusion with defendants 3 and 4 and whether the purchaser was a mere benamdar of these defendants. It may be said at the outset that even if the facts alleged are proved to be true that would not be a ground for setting aside the sale. The plaintiffs could only pray for re-conveyance of the property on the footing that the purchaser was their trustee and admittedly there was no such prayer in the plaint. But assuming that this is only a matter of amendment of the plaint let us see how far the allegations of the plaintiffs have been made out by evidence in this case. Mr. Chakravarty has frankly conceded that there is no evidence worth the name to show that the purchaser acted in collusion with defendants 3 and 4 or that he was the benamdar of these defendants or even of defendant 2. The price paid for the property was only Rs. 65 and no attempt was made to prove that the money was paid by defendant 2 and not by defendant 1 himself. We may accept the finding of the learned Subordinate Judge that defendant 2 was entrusted with the sum of Rs. 95 and was asked to pay the revenue due for the March and June Kists of 1936. The evidence shows that on 26th June 1936, when the revenue for the March kist was paid, Shib Chandra Gope, the father of plaintiff 3, was actually present in Court and himself made the application praying for permission to deposit the arrears for March for which the property was already advertised for sale. It is difficult to believe that Prokash could make a default in the payment of revenue for the June kist in his very presence. But even assuming that Prakash did make a default we are unable to hold that he did so in collusion with defendant 1 and that the latter was a party to, the fraud, if any, committed by Prokash. The only facts that transpired in the evidence are that defendant 1 was a Muktear who on some occasions engaged the master of Prokash as his senior. On this slender foundation we are unable to hold that these two people conspired together to have the property fraudulently put up to sale. In our opinion, the finding of the learned Subordinate Judge on this point is plainly unsustainable.

8. The result is that we allow the appeal, set aside the judgment and decree of the learned Subordinate Judge and dismiss the plaintiffs' suit. Having regard to the fact that the property was sold at a very inadequate price we direct that each party will bear its own costs in both the Courts.

Ellis, J.

9. I agree.


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