R.C. Mitter, J.
1. Touzis Nos. 355 and 394 of the twenty-four Pergunahs Collectorate were owned by a large number of proprietors, who in groups had opened a number of separate accounts. Separate accounts Nos. 4 and 5 of each of those touzis were opened in the names of Kumud Mondal group and Jugal Mondal group respectively, and separate account No. 18 of the first mentioned touzi and No. 19 of the last mentioned touzi were opened in the name of Radha Binode Mandal. Radha Binode is dead and his estate has vested in his executor, Dr. Jaharlal Dass, the appellant before us.
2. In 1902 Radha Binode Mondal granted by the potta, Ex. 17, a permanent tenure of his share in the said two touzis, as recorded in the aforesaid two separate accounts Nos. 18 and 19, to Kumud and Jugal groups of proprietors. One of the terms of the potta is that the tenure-holders are to pay out of the reserved rent the revenue payable in the grantor's share to the Collector as it fell due and to pay the balance as munafa to him. The tenure-holders further made themselves liable to pay damages to the grantor, if for their default in the payment of revenue for separate accounts Nos. 18 and 19 the grantor's share in the estates was sold by the Collector.
3. Radha Binode held six sub-tenancies under this permanent tenure. Kumud and Jugal groups paid the revenue for kist January 1932 payable for separate accounts Nos. 18 and 19 but did not pay the revenue payable in respect of their own shares in the two touzis, namely for separate accounts Nos. 4 and 5. Other proprietors of some other separate accounts also failed to pay their share of the revenue for the said kist, with the result that all the separate accounts in default were advertised for sale by the Collector and in terms of Section 13, Bengal Land Revenue Sales Act (11 [XI] of 1859 hereafter called the Act) the Collector put up for sale in the first instance one separate account in default of each of the those two touzis. The learned advocate appearing for the respondents tells us that separate account No. 2 of touzi No. 355 and No. 1 of touzi No. 394 were the separate accounts which were put up to sale by the Collector in the first instance. This fact is not admitted by the appellant's advocate and there are at present no materials on the record which would enable us to say whether the respondents' advocate's statement is correct or not, as the sale papers of the Collector which we are told were produced in the Court of first instance have been taken back. The point is not however material in the view we are taking of Section 53 of the Act. The highest bids offered did not, however, cover the arrears of revenue due for the shares put up for sale in the first instance with the result that the Collector stopped the sale and made the declaration in terms of para. 1 of Section 14 of the Act. No recorded proprietor of the touzis exercised the option of purchase with the result that all the separate accounts were merged into one account and it was then found that the entire estates were in arrears. They were accordingly put up for sale on 20-6-1932 and were purchased by Bholanath Mondal. The respondents Jitendra Nath Mondal and others are the legal representatives of Bholanath Mandal. It has been found by all the Courts that Bholanath was a benamdar of Kumud and Jugal groups. These six appeals before us are in respect of one rent suit brought by Bholanath Mondal for the years 1339 to 1345 in respect of the six sub-tenancies which Radha Binode held under the permanent tenure created by Ex. 17. His case is that as purchaser of the entire estates at a revenue sale he had the right to annul and had in fact annulled the permanent tenure and so he had become the immediate landlord of the said six sub-tenancies. The learned Subordinate Judge in whose Court the said rent suit was fifed and the learned Additional District Judge on appeal dismissed the suit. On further appeal our learned brother Chakravartti J. decreed the suit for the years 1343 to 1345. He dismissed the plaintiff's claim for the years 1339 to 1342 on the ground that the aforesaid permanent tenure had been annulled only on 2nd Bysack 1343. He held that though in the written statement the defendant sought to resist the claim of the plaintiff on two independent grounds, one of them only had to be considered, because the other was not 'pursued by him in the course of the trial.' It would be convenient at this stage to summarise the defence and the findings of the Courts below and of our learned brother. The defendant pleaded:
(I)(a) that Bholanath Mandal, the purchaser at the revenue sales, was the benamdar of Kumud and Jugal groups.
4. This was denied by the plaintiff but the Courts below found that he was their benamdar and our learned brother upheld that finding.
(b) that the plaintiff, being the benamdar of the co-proprietors, who were themselves defaulters, had no right to annul the permanent tenure;
5. The Courts below held that he had not the right, but our learned brother held that he was entitled to annul. This point depends upon the construction of Section 63 of the Act.
(c) that the plaintiff had not in fact annulled the permanent tenure;
6. The learned Subordinate Judge and the Additional District Judge held that the plaintiff had failed to prove that he had in fact annulled the permanent tenure before the institution of this suit for rent. Our learned brother held that it had been annulled on the 2nd Bysack 1343. This conclusion of our learned brother has not been challenged before us by the defendant appellant.
(d) that in any event the claim for rent for the years 1339 to 1341 was barred by limitation.
7. The learned Subordinate Judge held that the claim for 1339 only was barred. The learned District Judge did not deal with this point and it seems that this point was not pressed before our learned brother. As he has granted a decree from the year 1343 and as there is no appeal by the plaintiff from his judgment the question of limitation is not material.
(II) That Kumud and Jugal groups brought about the revenue sale by not paying their share of the revenue for Kist January 1932 with the fraudulent object of getting rid of their liability to pay rent payable for the permanent tenure which they held under Radha Binode Mandal by virtue of the potta Ex. 17.
8. Our brother observed that the defendant did not put forward any defence based on his rights as co-proprietor of the estate, but a defence of this nature was only 'suggested' in para. 9 of the written statement. It was not however pursued in the course of the trial in the Courts below. 'We would quote his actual words later on.
9. After making these observations he proceeded to say that he could not agree with the contention of the plaintiff's advocate.
that the real, or at least the only, cause of the sale was not their default. Other factors (which we take to mean the defaults of other co-proprietors) undoubtedly contributed of the touzis, but none of them was a breach of duty on the part of anybody else and at the beginning of them all was the default of the purchaser, of which the other factors were consequences. It is not, however, necessary for me to pursue this matter further, since the present case falls to be judged not by the rights which co-sharers who have not purchased may have against the co-sharer who has, but by the rights, if any, which a subordinate tenure-holder or a sub-tenant has against a co-sharer purchaser, or, to put it in another way, the rights which he has against the former under certain specific provisons of law.
At p. 9 of the typed copy of his judgment he further observed thus:
With the plaintiff eliminated, (because he found that he was the benamdar of Kumud and Jugal groups) the essential facts are that the estates were purchased by certain co-sharers who held serarate accounts and for whose default they were sold. After their purchase, they claim to have annulled a tenure held by themselves under another co-sharer whose share of the revenue they were bound under the terms of the lease to pay and which they had duly paid. The default was in respect of their own shares but it was not found that the default was intentional or fraudulent. It would, I believe, make for clarity if I indicate at this stage one question which might have been raised on the above facts but was not. The defendant, besides being a subtenant also represents the proprietary interest of the co-sharer who created the tenure claimed to have been annulled; indeed even as a sub-tenant he represents that co-sharer, But he did not put forward any defence based on his rights as a co-sharer proprietor. It was not contended by him that there was in this case such a lapse from the standard of good faith and candid dealing which one co-sharer owed to another that the purchase by Kumud and Jugal groups must be held to be a purchase on behalf of all the co-sharers, and that the proprietary interest of Radha Binode being saved from extinction the tenure created by him would be saved from annulment. A defence on those lines was suggested in para. 9 of the written statement.
10. In making the observation which we have underlined (here italicised) above, we assume our learned brother to mean only that a specific defence on the lines indicated was not adopted in the course of trial.
11. Paragraph 9 of the written statement begins with a definite charge-a charge of fraud against Kumud and Jugal groups. Therein the defendant states that:
With a view to avoid payment of the rent payable for the permanent tenure or to cause obstruction to its realization Kumud and Jugal groups in collusion with the other cosharers of the late Radha Binode Mondal did not pay revenue due for their separate accounts, caused the separate accounts to be put for sale in the first instance and then acting in collusion with each other had the entire touizs sold at the revenue sale and had them purchased in the benami of the plaintiff. In these circumstances the said persons or the plaintiff are in law the trustees for the defendant and Kumud and Jugal groups cannot in law claim the rights of a purchaser at a revenue sale of an entire estate. In fact the said purchase by them is to be reckoned as a purchase as trustees and on behalf of the defendant, and they are bound to execute a reconveyance in favour of the defendant.
12. In view of these specific statements we hold that the defendant did plead in the written statement an alternative case based on absence of fair and candid dealing on the part of his cosharers of Kumud and Jugal groups. We, however, agree with our learned brother that this case was not developed by the defendant in the lower Courts on the lines of this paragraph of the written statement, with the result that those Courts did not deal with the evidence that would have had a bearing on the question as to whether there was fraud or absence of fair and candid dealing on the part of Kumud and Jugal 'groups and did not arrive at a. finding on the point. Those persons had paid Radha Binode's share of the revenue, which they as permanent tenure-holders 'were bound to pay under the terms of the potta Ex. 17 but had not paid their own shares. That looks suspicious but a finding cannot be based on suspicion and so without examining the whole evidence on the record we cue self cannot record a finding. The Court of first instance no doubt came to the conclusion that the purchase made by Kumud and Jugal groups at the revsnue sales enured for the been it of the defendant, but that conclusion was rested by it on the ground that the barat on then by Ex. 17 to pay Radha Binode's share of the revenue made them trustees and agents of the defendant. The case was put apparently on she principle that a purchase by a trustee enares to the benefit of the trust estate and that by an agent to the benefit of his principal. The Court of first instance did not hold that fraud or want of fair and candid dealing on the part of those two groups made them trustees for the defendant. In fact as we have already said there is no finding of fraud or absence of fair and candid dealing on the part of those two groups by any of the Courts below. The lower appellate Court proceeded on exactly the same lines as the trial Court. We have already noted the fact that several other separate accounts were in default, and that from the record as it stands it is not clear which separate account was put up to sale in the first instance. It would have been necessary to remand the case for the purpose of further investigation into facts in order to decide the alternative case of the defendant as set out in para. 9 of the written statement, but we are relived of pursuing that course, because in our opinion the appeals ought to succeed on the other question, namely whether the purchaser of an entire revenue paying estate, who himself is a defaulter, but who had opened a separate account acquires the estate free from encumbrances and with the right to avoid under-tenures when the entire estate was sold under the provisions of Section 14 of the Act.
13. The Act draws a broad distinction between the cases where an entire estate and where a share recorded in a separate account is sold for non-payment of revenue. In the first case, the general provision is, subject to an exception, that such a purchaser acquires the estate free from encumbrances and with the right to annul all under-tenures etc. which do not fall within the proviso to Section 87 and in the last mentioned case he acquires the share subject to encumbrances, and does not acquire any greater rights than the defaulter had. The exception in the case of a sale of an entire estate is where the entire estate had been purchased by any one of the former recorded or unrecorded proprietors or when it had passed to them from a stranger purchaser. In such cases encumbrances subsist, as also under-tenures, which the former proprietors could not have annulled. This is the substantive enactment in Section 53. For this purpose it would not matter whether the former proprietor so purchasing the entire estate had paid what would vis a vis his co-proprietors be regarded to be his share of the liability. The substantive enactment in Section 53 is a proviso to the substantive enactment in Section 37. This is our learned brother's opinion, and it has been so held by the Judicial Committee of the Privy Council in Shyam Kumari v. Rameswara Singh ('05) 32 Cal. 27 No exception can also be taken to the further proposition laid down by our brother that Section 53 has a proviso or exception to itself, and that the effect of that proviso is to bestow on the person who comes within it the rights defined in Section 37 of the Act. That must be the effect, for an exception to an exception restores the main enactment. The point for consideration is, however, what is the precise scope of the exception contemplated in Section 53.
14. Proceeding on the words of the section 'Excepting shares with whom the Collector, under Sections 10 and 11 of the Act, had opened separate accounts...' our learned brother held that all co-proprietors who had opened separate accounts, be they defaulters or not, fall within the exception, as no distinction has been made by the legislature between defaulters and co-proprietors who had duly paid their share of the revenue as shown in their separate accounts and those who have not, and that it would not be right in construing a statute to add any word or phrase. In coming to this conclusion he took into consideration Sections 37 and 53 of the Act, but made no reference to the preamble or to the scheme of the Act. In a question of construe ton all parts of the statute have to be taken into consideration and cases are not rare where the dictionary meaning of words and phrases hare been either enlarged or restricted and this in substance involves addition to express words of a statute on ascertainment of the intention of the legislature on an examination of the whole or a great part of the statute. The scope and object of a statute as expressed therein or which could be gathered from it are important matters for considerations in construing a particular provision of the statute. What mischief the legislature intended to undo and in what manner it had accomplished its object are equally important matters to be taken into consideration.
15. As the preamble to a statute is a part of the statute and is in the nature of a recital of the facts operative on the mind of the law-giver in proceeding to enact and furnishes the key to the understanding of it, we will first refer to a portion of the preamble to the Act. After refer, ring to the various other objects which the legislature had in view it states that:
Whereas it is expedient to afford sharers in estates, who duly pay their share of the Sadar Jama of their estate, easy means of protecting their shares from sale by reason of the default of their co-sharers....
An examination of the Act shows unmistakably that the legislature intended to fulfil this object in a particular way, namely through the machinary of 'separate accounts' which is a creation of the Act. Sections 10 and 11 authorise the opening of separate accounts. Section 10 deals with separate accounts in respect of a share in a revenue paying estate held in common tenancy and the other section with separate accounts where a co-proprietor holds specific lands in his share. In either case where the co-proprietor wishes to pay his share of the revenue separately he can apply to the Collector for opening a separate account in his name. As soon as his application is allowed by the Collector the liability for sale and not the liability to pay according to Dowl Kistibandi is separated frorn the date of the Collector's order. This is the meaning of the last sentences of Sections 10 and 11 of the Act. 45. Manmatha Nath v. Ananga Mohan : AIR1941Cal702 . The result is that revenue continues to be a first charge on the entire estate but by separating the liability for sale through the opening of a separate account the legislature affords the co. proprietor who has duly paid his share of the revenue easy means of protecting his share from sale occasioned by the default of his co-sharer or co-sharers at the same time however safeguarding the rights of the Government in respect of the revenue demand. This object is effected through Sections 13 and 14 of the Act. Only the share in default is to be advertised for sale and to be put up to sale in the first instance. If the bid clears up the Government demand the dues of the Government is satisfied at the same time the share of the co-proprietor who has paid his share of the revenue appearing in his separate account is saved from sale. But in as much the purchaser of the share in default gets the share subject to encumbrances and so to say steps into the shoes of the defaulter the share so put up to sale may be so heavily encumbered as not to attract bidders. If such a contingency happens the co-proprietor who has duly paid his share is afforded an opportunity of saving his share from sale by buying the share in default for the amount of the Government demand. This is para. 2 of Section 14. The word 'other' in the phrase 'unless the other recorded sharer or sharers' occurring in that paragraph clearly refers to a sharer or sharers other than a sharer in default. Here also if a sharer who is not in default exercises the option of pur. chase of the share in default he gets the share subject to encumbrances etc., for S'14 is also mentioned in Section 54 of the Act. If the share in default is heavily encumbered, it may be he is not likely to exercise that option, but the Government must have its dues in any event. So as a last resort the Collector is authorised to sell the entire estate if on merging the accounts there is arrears, and the sharer who has duly paid his share as appearing in the separate account opened in his name is offered an inducement to purchase the entire estate by giving him greater rights than that of a recorded or unrecorded proprietor who by purchase directly or indirectly gets back his estate, namely the rights of a stranger purchaser of an entire estate as defined in Section 37 of the Act. By his purchasing the entire estate he, so to say, saves his share in the estate and at the same time Government dues are satisfied.
16. This, in our judgment, is the intention of the legislature which can be gathered from the scheme of the Act and so for giving effect to that intention the Opening words of Section 53 must be there read not in their literal sense, as has been done by our learned brother, but all the implications attaching to the phrase 'separate accounts opened under Sections 10 and 11' must be imported. The effect is that sharers who have opened separate accounts and who have duly paid their shares of the revenue as appearing in their separate accounts as opened under Sections 10 or 11 of the Act are the only persons excepted from the operation of the substantive enactment in Section 53. This view of ours is supported by the obiter dictum in Bhramar Singh v. Umesh Chandra ('39) 43 C.W.N. 803 to which one of us was a party.
17. The result is that all these appeals are allowed and the suit for rent is dismissed with costs throughout.
18. I agree.