Prinsep and Hill, JJ.
1. The question raised in this appeal relates to the construction of Section 54 of the Revenue Sale Law (Act XI of 1859). A share admitted to special registry under Sections 10* and 11 was advertised for sale for arrears of Government revenue for the June hist. Subsequent to the default and before the sale, the recorded sharer mortgaged his interests in that share. The question before us, therefore, is: what are the rights under this mortgage as against the purchaser at the subsequent sale for arrears of revenue
2. Section 54 declares that in a sale of this description 'the purchaser shall acquire the share or shares subject to all encumbrances, and shall not acquire any rights which were not possessed by the previous owner or owners.' The certificate granted to such a purchaser is by Section 28 declared to be a certificate in the form prescribed in Schedule A, and this form declares that the purchase under which the title accrues takes effect on a date which is the day after that fixed for the last day of payment, that is to say, the day on which the estate fell into default by failure of the sharer to pay his share of the Government revenue. It would seem clear, therefore, that any encumbrance, such as the mortgage now before us, created after what is declared to be the date on which the title under a purchase for arrears of revenue takes effect, would be null and void. But much argument, both here and in the Courts below, has been directed to the terms of Section 53, and it is contended that those terms apply equally to Section 54, although that section is expressed differently and in language not necessarily conveying the same meaning. A purchaser within the terms of Section 53, not being the purchaser of a share admitted to special registration, is declared entitled to acquire the estate subject to all the encumbrances 'existing at the time of sale.' The words 'existing at the time of sale' do not appear in Section 54. To hold that the two sections confer the same rights on different kinds of purchasers would be to assume that the Legislature unintentionally omitted those words in Section 54, or that they are redundant in Section 53. This we cannot do. It is clear that, in order to give effect to the law, a distinction must be drawn from the omission of these words in Section 54. The Legislature appears to have directed that, ordinarily by reason of a certificate in terms of Schedule A, all encumbrances created after the date on which a purchase takes effect, that is to say, created after the date on which the default was committed, are void; but that, under the circumstances described in Section 53, the terms of that certificate shall be limited, and a purchaser under Section 53 will acquire the estate subject to all encumbrances existing at the time of sale whether created before or after the default, and even up to the date of the sale. It is unnecessary for us to do more than point to the injury which might be done to the property of other sharers if the owner of a share admitted to special registration were allowed, subsequent to default in payment of revenue, to create encumbrances which would bind his share after it passed into the hands of the purchaser. The encumbrance, if a valid encumbrance, would necessarily diminish the price bid for the share, so as in all probability to make it less than the amount of revenue in arrear. The entire estate, including the shares of other recorded sharers, would then be liable to sale, and thus to save an encumbrance created by a defaulting share after the default, the property of other sharers who had paid their portion of Government revenue would become liable. The result would be that the; encumbrance on the share would become a burden on the entire estate. It was probably to avoid such an injustice that the terms of Section 54, as distinct from Section 53, were enacted. One of the principal objects of Act XI of 1859, which was to give relief to co-sharers who had protected their rights by special registration, would be frustrated if such an opportunity were given to a defaulting co-sharer. We are, therefore, of opinion that there is a clear distinction between rights acquired under Section 53 and under Section 54, and that in the present case the mortgage which was created after the last day of payment, that is to say, the date of default in payment of Government revenue, was of no effect as against the purchaser at a revenue sale which subsequently took place. The orders of the lower Courts will, therefore, be set aside, and plaintiff's suit dismissed. The defendants will' be entitled to costs both in this Court and in the lower Courts.
* Separation of shares held in common.
[Section 10: When a recorded sharer of a joint estate, held in common tenancy, desires to pay his share of the Government revenue separately, he may submit to the Collector a written application to that effect. The application must contain a specification of the share held in the estate by the applicant. The Collector shall then cause to be published in his own office in the Courts of the Judge, Magistrate (or Joint Magistrate, as the case may be), and Moonsifs, and in the Police Thannahs in whose jurisdiction the estate or any part thereof is situated, as well as on some conspicuous part of the estate itself, a copy of the application made to him.
If within six weeks from the date of the publication of these notices no objection is made by any other recorded sharer, the Collector shall open a separate account with the applicant, and shall credit separately to his share all payments made by him on account of it. The date on which the Collector records his sanction to the opening of a separate account, shall be held to be that from which the separate liabilities of the share of the applicant commence.]