Wilson and Field, JJ.
1. The suit in this case was brought to enforce a mortgage. The plaintiff made not only the mortgagors, but the person who had become the purchaser of the mortgaged premises, defendants. The property sued for is confessedly lakheraj property. The purchaser, the defendant No. 3, alone appeared, and her defence was, that another person, the owner of the estate within the local boundaries of which the lakheraj in question is included, had paid the road cess in respect of that lakheraj; that he had taken proceedings to recover from the lakherajdar the road cess so paid, and obtained a decree; and that in execution of that decree he put up for sale the lakheraj property, and the defendant No. 3 became the purchaser. The effect was, as she says, to pass to her a good title free from all incumbrances, including the plaintiff's mortgage.
2. The lower Appellate Court has decided in favour of the defendant No. 3.
3. It appears to us that the decree cannot be supported. The matter turns upon the enactment of Bengal Act X of 1871 which was then in force with regard to road cess.
4. It will be convenient here to point out, what is known to everybody that, according to the general scheme of the Road Cess Act, the owner of an estate pays for everything within the ambit of the estate, and recovers their share from those holding under him. The tenure-holder again pays for everything within the ambit of his tenure and recovers their share from his tenants. The third class, the ryots, pay for themselves alone. As regards lakheraj property, which might be said not to form a part of a tenure or estate, they are specially dealt with. Section 3 says that 'tenure includes every interest in land, whether rent-paying or not, save an estate as above defined, and save the interest of a cultivating ryot.' This is a definition for the purposes of the Act, and it must always be remembered that the effect of an interpretation clause is to give the meaning assigned by it to the word interpreted in all places of the Act in which that word occurs. And, therefore, wherever we find the word 'tenure' in Bengal Act X of 1871, it must, unless the contrary plainly appear, be understood in accordance with the meaning put upon it by the interpretation clause. But it is by no means the effect of an interpretation clause that the thing defined shall have annexed to it every incident which may seem to be attached to it by any other Act of the Legislature. Thus with regard to the word 'tenure' it by no means follows that because lakheraj is defined to be a tenure in this Act, therefore all the interests and consequences attached by other Acts to tenures generally, or to particular classes of tenures, become annexed to lakheraj property. One other thing, which it may be well to point out, is this: These Acts must be considered according to the settled principles of interpretation. And it is a well-settled principle of interpretation that no statute is to be construed to take away private right of property, unless such an intention appears by express words, or by necessary implication.
5. With these preliminary remarks let us refer to the sections in Bengal Act X of 1871, which bear directly upon the question at issue.
6. Section 26 of the Act says: 'All lands held without payment of rent other than lands mentioned in Section 9, and not being estates entered on the register of revenue-free tenures of the district, shall, for the purposes of this Act, be deemed to form a part of the tenure within the local boundaries of which they may be included, and if they be not included within the local boundary of any tenure, then to be a part of the estate within the local boundaries of which they are included, and if they be not included within the local boundaries of any estate, then to be a part of such conterminous estate as the Collector, in whose district such conterminous estate is situated, shall, by an order under his seal, appoint. And road cess in respect of such lands shall be payable by the holder of the estate or tenure of which they are deemed to form a part, and shall be recoverable under the provisions of Section 23 or Section 25 as the case may be.' The effect of that section is, that for the purpose of ascertaining who is to pay the road cess in the first instance, and how it is to be recovered, we are to consider the lakheraj falling within this section as if it were a part of the tenure or estate in which it lies. We have next to see what is meant by the words 'shall be recoverable under the provisions of Section 23 or Section 25.' Section 23 provides for a case where road cess is to be recovered directly by the Collector. It says: 'If any instalment of such road cess or part thereof payable to the Collector shall not be paid, the person making default shall at any time within three years next after the same has become payable, be liable to pay the amount of the arrear, and such amount may be levied by an order in writing of the Collector, and the provisions of Section 10 shall apply to such order.' The provisions of Section 10 enable the Collector to recover fines by means of the certificate procedure, a procedure which is well known. Section 23 goes on to provide an alternative method of recovery. It says: 'Or the Collector may, if he see fit after recording his opinion to that effect,' serve a notice as provided in Schedule C, the effect of which is to sequestrate, if I may use the expression, the tenure or other property concerned, and to enable the Collector to receive the rents until the amount of road cess arrear is satisfied.
7. These remedies are of a summary kind; but neither the one nor the other results in affecting the interests of any third person as distinguished from the person, or any of the persons, whose lands are liable in respect of road cess.
8. Section 25 deals with the corresponding case, where the recovery of road cess is not to be by the Collector, but by the person who has paid, and is entitled to recover it. It says: 'Every holder of an estate or tenure to whom any sums may be payable under the provisions of this Act, may recover the same in the same manner and under the same penalties as if the same were arrears of rent due in respect of the land in respect of which such sums may be payable.' These are the words on which the decision of this case turns. Now, all that is said in this section is, that all sums payable may be recovered in the same manner and under the same penalties as if they were arrears of rent due in respect of the land in respect of which such sums may be payable. The construction put upon these words by the Court below in this case is this : that the effect of them is to make a sale in execution of a decree, for these sums operate in the same way as the sale of a putni, or of an under-tenure specially defined in Section 59 of the Rent Act.
9. It appears to us that there are two fatal objections to this construction. The first is this: In order to give such an effect to the words, it is necessary to read them as if the section ran thus: that the sums may be recoverable in the same manner and under the same penalties as if they were arrears of rent due in respect of the land in respect of which such sums may be payable, and the thing sold were a putni tenure under the putni Regulation, or an under-tenure described in Section 59 of the Rent Law. There are no such words in the section ; and we have no right to import them.
10. Secondly, we should further have to add words to the effect that the proceedings taken should have the same effect as proceedings for rent in the cases referred to, and that as against third persons who are not parties.
11. These two objections are fatal to the construction placed by the Court below on the language of Section 25 of the Road Cess Act, 1871.
12. We are dealing here entirely with the case of a sale under Bengal Act X of 1871. At present a different law is in force, that is to say, these matters are now governed by Bengal Act IX of 1880, and the amending Act of the Government of India (X of 1881). In saying this I desire to guard against being understood to say that there has been any change in the law under the new Act. It is not necessary to decide that question now. I do not for a moment suggest that there has been any such change.
13. The result is that the decree of the Court below will be varied by striking out of it the words, 'with the exception of the 61/2-annas share of mouzah Sonamukhi.'
14. The plaintiffs will have costs in all the Courts.