1. This is a reference under Section 98, Sub-section (2) of the Civil Procedure Code of 1908. The reference is not strictly in form, because the learned Judges have omitted to state specifically the point of law upon which they differed. The difference between Section 575 of the Code of 1882 and Section 98 of the Code of 1908 appears to have been overlooked. Under the former Code, it was the appeal that was referred to a third Judge when the Judges bearing the appeal differed in opinion on a point of law, and on such reference the whole appeal was open for argument and not merely the point of law on which the Judges had differed in opinion. Under the Code of 1908, the proper procedure is to state the point of law upon which the Judges differ; the appeal is then to be heard upon that point only, and what is to be decided is not the appeal but the point of law only. In the case before me, this procedure has not been followed; but the parties are agreed that there is only one point of of law involved in the appeal, upon which the learned Judges who heard the appeal in the first instance have differed, as is manifest from their recorded opinions. That point may be formulated as follows:
2. Is a proprietor who is not a recorded sharer of a joint estate held in joint tenancy within the meaning of Section 10 of Act XI of 1859 nor a recorded sharer whose share consists of a specific portion of the lands of the estate within the meaning of Section 11, but is recorded as proprietor of an undivided interest held in common tenancy of a specific portion of the lands of the estate, but not extending over the whole estate within the meaning of Section 70 of the Bengal Land Registration Act, 1876, entitled to claim the benefit of the exception made in Section 53 of Act XI of 1859 in favour of sharers with whom the Collector has under Section 10 or Section 11 of the Act opened separate accounts
3. My learned brother Brett is of opinion that this question ought to be answered in the affirmative. My learned brother Vincent on the other hand is of opinion that the question ought to be answered in the negative. To determine which of these two conflicting views should prevail, the provisions of the Revenue Sale Law (Act XI of 1859) and of the Land Registration Act [Act VII of (1876) B.C.] must be examined.
4. It is necessary to premise at the outset that one of the proprietors of a joint estate may be in enjoyment of his interest therein in one of three ways; namely, first, he may be a recorded sharer of the whole joint--estate held in common tenancy; secondly, he may be a recorded sharer of the joint estate and his share may consist of a specific portion of the land of the estate; or, thirdly, he may be recorded as proprietor of an undivided interest held in common tenancy in a specific portion of the land of the estate, but not extending over the whole estate. If his interest is of the first description, he may apply to have his share separated and a separate account opened under Section 10 of Act XI of 1859. If his interest is of the second description, he may have his share separated and a separate account opened under Section 11 of Act XI of 1859. If his interest is of the third description, he may have his share separated and a separate account opened under Section 70 of the Land Registration Act. In this connection, it is important to bear in mind that under Section 71 of the Land Registration Act, Section 12 of Act XI of 1859 is made applicable to an application under Section 70, and it is further provided that the effect and consequences of opening a separate account under Section 70 shall be such and the same as are described in Sections 18 and 14 of Act XI of 1859. It is manifest, therefore, that the consequences of the, opening of a separate account in cases covered by Section 70 (that is, where the applicant is proprietor of an undivided interest held in common tenancy in a specific portion of the land of the estate, but not extending over the whole estate) are assimilated to the consequences of opening a separate account under Section 10 or Section 11 of Act XI of 1859, only in so far as Sections 13 and 14 are concerned, that is, only in respect of the sale of the separated share and of the entire estate under certain specified conditions. Now, when we turn to Section 53 of Act XI of 1859, we find that it defines the right of a purchaser at a revenue sale who is a recorded or unrecorded proprietor or co-partner. Such person, whether he purchases the property at a revenue sale or acquires it by re-purchase from the purchaser, acquires the estate, to put the matter briefly, subject to all its encumbrances existing at the time of the sale. An exception, however, is made in favour of sharers with whom the Collector has opened separate accounts under Sections 10 and 11 of the Statute; they stand in a position of advantage which is denied to the purchaser co-partner who has not opened a separate account under either of these sections. I am not concerned with the policy of the Legislature in this respect, but it is remarkable that the privilege is not extended to persons who have opened separate accounts under Section 70 of the Land Registration Act. Section 71, as I have just observed, makes Sections 13 and 14, but not Section 53, of Act XI of 1859 applicable to the proprietor who has obtained a separate account opened under Section 70. The inference is irresistible that the co-partner, whose interest is of the description mentioned in Section 70 and whose separate account has been opened under that Section, can purchase the estate at a revenue sale, only as subject to encumbrances. The question then arises, does it make any real difference if a separate account, which could not be opened under Section 10 or Section 11 of Act XI of 1859, because the interest of the proprietor was not of either of the two descriptions mentioned in these Sections, has been opened by the Collector without any jurisdiction. In my opinion, it makes no difference whatsoever. The position of the proprietor who has obtained a separate account so opened, in contravention of Section 10 or Section 11, is not identical for purposes of Section 58 with the position of the proprietor whose separate account has been properly opened. The expression 'sharers with whom the Collector has opened separate accounts under Sections 10 and 11' plainly means 'sharers with whom the Collector has opened separate accounts acting in conformity with Sections 10 and 11.' To accept any other interpretation would be to acquiesce in a fraud on the Statute. The Collector when lie opens a separate account under Section 10 or 11 performs a statutory duty; his act must be in strict conformity with the legislative provisions on the subject. If the Collector opens a separate account in clear contravention of the provisions of Section 10 and Section 11, in fact, if the Collector applies the provisions to cases to which the Legislature never intended that they should be applied, his act is without jurisdiction and cannot confer upon the person who obtains a separate account opened under such circumstances the statutory privilege created by Section 58. If an authority is needed in support of the proposition that where jurisdiction is usurped in contravention of statutory provisions, the act performed-is a nullity, reference may be made to the decisions of the Judicial Committee in Ledgard v. Bull (1886) I.L.R. 134 : L.R. 13 I.A. 134 Minakshi v. Subramnnya (1887) I.L.R. 11 Mad. 26 : L.R. 14 I.R. 160 Fischer v. Secretary of State (1898) I.L.R. 22 Mad. 270 : L.R. 26 I.A. 16 and of this Court in Achhamian v. Durga Churn Law (1897) I.L.R. 25 Calc. 146 Golab Sao v. Chowdhury Madho Lal (1905) 2 C.L.J. 284 Gurdeo Singh v. Chandrikah Singh (1907) I.L.R. 36 Calc. 193 : 5 C.L.J. 611 and Ananda Kishore v. Daiie (1909) I.L.R. 36 Calc. 726 : 10 C.L.J. 189. In my opinion, the view adopted by Mr. Justice Vincent is correct, and I entirely agree in his conclusion that the question of law formulated above must be answered in the negative. This view is in accordance with that taken in the case of Nunho Shahee v. Ram Pershad (1873) 21 W.R. 38 which, so far as I have been able to discover, has never-been doubted in this Court. I observe that with reference to this decision, my learned brother Brett remarks that the judgment does not state what the cause of action was. I have accordingly examined the records of that case. It appears that an estate Chilowley consisted of six villages. The plaintiffs were interested in a one-half share of four only of the six villages. They applied to the Collector to open a separate account for the half share of the four villages. Upon objection of the defendants co-proprietors, the application was refused by the Collector on the 17th April 1871. On the 15th May following, the plaintiffs sued for declaration of title and for separation of the Government revenue of their share of the four villages. The first Court held that the suit was maintainable under Section 12 of Act XI of 1859 and made a decree in favour of the plaintiffs, though the revenue assigned was calculated on a basis other than that suggested by the plaintiffs. Upon appeal by the plaintiffs, the decree of the Subordinate Judge was affirmed by the District Judge. Upon second appeal to this Court by the plaintiffs (which related to the amount of revenue assignable in respect of the half share of the four villages), it appeal's to have been argued by the defendants-respondents (by way of cross-objection, though a memorandum of cross-objection is not to be traced on the part of the record still in existence), that the suit was not maintainable under Section 12 of Act XI of 1859, as the plaintiffs were not entitled to have a separate account opened under either Section 10 or Section 11. Phear and Morris JJ. gave effect to this contention and dismissed the suit. The learned Judges held that, as the plaintiffs were shareholders in some only of the villages constituting the estate, they could not claim to have a separate amount opened under either Section 10 or Section 11. It is superfluous to add that upon a plain reading of the Sections no other conclusion was possible.
5. Let me now consider the effect of this view of the law upon the present question. The records of the Collector which have been called for, upon the joint application of both the parties, show conclusively that, not merely the fifth separate account, the proprietor of which purchased this estate at the revenue sale held on the 6th June 1899, but all the fifteen separate accounts had been opened during the years 1871--1874 in contravention of the provisions of Sections 10 and 11 of Act XI of 1859: the applicants were neither sharers in the whole estate nor proprietors of specific lands, but they were shareholders in some only of the many villages comprised in the entire estate, as is clearly shown by the details of the shares and villages in respect of which the separate accounts were opened. This state of things has continued for many years, and has not been questioned by the various proprietors. The reason is obvious. When the Land Registration Act of 1876 came into force, it became clear that what had been done before irregularly, because not falling within the scope of Sections 10 and 11 of Act XI of 1859, might be validly done under Section 70 of the Land Registration Act. It would have been idle, therefore, for the parties to challenge the validity of the separate accounts at any time after 1875. If objection had been taken by any of the proprietors, the then existing arrangements might have been validated by the presentation of applications under Section 70 of the Land Registration Act. It is not right to say that the parties now attempt to invalidate what had been done at their instance during the years 1872-74, and no such question arises as was considered by this Court in Rai Mohan Saha v. Sashanka Mohan Roy (1899) 12 C.L.J. 407 namely, the right of a proprietor to question the validity of a settlement of an estate irregularly made. If we look at the substance of the matter, the position of the parties is identical with what would have been their position if the separate accounts had been, as they could have been, opened under Section 70 of the Land Registration Act. There is no controversy that if they be deemed to have been opened under Section 70 of the Land Registration Act, the purchaser at the revenue sale is not entitled to claim the benefit of the exception in Section 53 of Act XI of 1859. The conclusion follows that the view adopted by Mr. Justice Vincent, in concurrence with the Court of First Instance that the purchaser has acquired the property subject to encumbrances, is correct, and must be upheld.
6. It is satisfactory to find that this view of the law is manifestly in accord with the justice of the case. We have some indication of the value of the property, when we remember that the mortgagees advanced more than Rs. 13,000 on security of the share of the villages comprised in the first separate account which may be assumed to be worth at least that sum. The value of that share, as shown by the proportion of the total Government revenue assigned to it, is about one-sixth of the value of the entire estate. The whole estate, therefore, is worth at a very moderate estimate at least Rs. 78,000. The purchaser has acquired it for Rs. 16,200; the charge claimed by the mortgagees amounts approximately to Rs. 20,000; even if the purchaser has to pay this charge, as, in concurrence with Mr. Justice Vincent, I hold that lie is bound to do, he has made an excellent bargain. In fact, the very small price paid by the purchaser indicates plainly that he, at any rate, must have thought that he was acquiring the property subject to encumbrances.
7. The result, therefore, is that in concurrence with Mr. Justice Vincent. I hold that the decree of the Subordinate Judge must be affirmed, and this appeal, dismissed with costs.